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Full text of "Illinois Appellate Court Unpublished Opinions: first series"

Digitized by tine Internet Arcliive 

in 2010 witli funding from 

CARLI: Consortium of Academic and Researcli Libraries in Illinois 



http://www.archive.org/details/illinoisappellat320illi 






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42576 

In tix« Matter of the Eetfate of 
GILES MoCLSNDON^ an Inoompetent^ 
now deceaeedy 



..,:^ 



) 

) 

MAUD FL0WETl9j-,S^eoutrlx pt^th9 La«t ) 

Will and Teataaeirt^«^jsi^|ej MoClendoni j 




deceased, 



m^\ 



Appellant, 



CIRCUIT fOURT 

/ 

)0K COlilTY, 



.=^" ▼• 



AMEMIOAN NATIONAL BAKK it TRUST C0», 



Coaterrator, 



Appellee, 



:f P~9i 





WU PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT, 

,.r>r Letters of ooneei*Tator>hlp tere Issued to the Straus National 

Bank it Trust Company on Noveoiber 9, 1928 In the matter of the estate 
of ailes MoClendon, Inooapetenti aind It thereupon ouallfied as 
conservator. The name of the bank was later ohanged to Aaerioan National 
Bank & Trust Company, On May 7, 1929 the oonserrator filed in the 
Probate Court of Cook County Ite Inventory of the assets of the estate. 
On January 18, 1930 an amended inventory vas filed. On January 50, 
1930 the ooneezMrator filed Its first annual report and acoount covering 
the period from the date of appointment to and including December 31, 
1929. On i^ril 17, 1930 a supplemental inventory was filed. These 
reports and accounts were approved. On January 16, 1935 OHes 
MeClendon, the ward, died teste te at Chicago. The will was filed on 
May 16, 1935 and was admitted to probate on July 24, 1935,/ On September 9, 
1935 Maud ^lowers, who was nominated by the testator to be executrix, 
was appointed administratrix to collect. On March 30, 1939, at the 
conclusion of a suit to contest the will, Maud Flowers was apoointed ^ 
and qualified as executrix under the will. The conservator did not - ^* 
file any annual account from the time of the filing of the first report 
and account In January, 1930 to and including the date of the death of 
the ward. On April 7, 1936 (subsequent to the death of the ward) the 
conservator filed its final account, Maud Flowers, executrix, filed ' 
objections to the final account. On June 12, 1936 the Probe te Court 



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2 

tfvarruled the objeotlone and approved the account and report, subject 
to future hearings upon the question of attorneys* fees and conservator's 
feeo« Mo appeal was taken from this order. Subsequent to March 30, 
1939 the executrix filed amended objections to the final report. 
Thereafter, she filed an amendment to her amended objections, Sh« 
alto filed a verified petition, praying that the court order the 
conservator to deliver \3p to her as executrix certain property therein 
enumerated and all other property held by the conservator at the time of 
the ward's death. She also filed a motion to vaoate the order entered 
on March 31, 1936, approving the final account, and asked that the 
conservator be surcharged as to certain disbursements. On May S, 
1941 the Pi^bate Court entered an order overruling the objections and 
motions of the executrix, and allowing 1*750 as additional fees to the 
conservator, v3,000 as additional fees to George C, Adams, its attorney, 
and i;250 to Joseph Ko]pi for special services pursuant to an order of 
the Probate Court, Maud ^lowers, as executrix, appealed from this order 
to the Circuit Court, T^e matter was referred to a Master in Chancery, 
Before the Master, stipulations were entered into between the parties 
with respect to the sernrices rendered by Mr, Adaa«, as attorney for the 
conservator, and as to the value of such 8ez*viceB, and also with respect 
to the services rendered by the conservator and as to the value of 
such services. There was no evidence offered to show there was any 
mismanagement of the estate by the conservator. The Master, among other 
things, stated that "the record in this estate discloses such neglect, 
poor Judgment and bad management that it Ahould not be oaid any further 
fees," and he recommended the disallowance of the claim for fees. Both 
parties fited objections^ These objections were permitted to stand as 
exceptions. The Circuit Court entered a decree on April 13, 1942 
finding that the order of the Probate Court, entered June 12, 1936 
approving the conservator's account, was res Judicata . The Sircuit Court 
found further that the Probate Court, in the order of June 12, 1936, 



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9 

retained Jxirisdiotion only for the pux*poee of fixing the fees of the 
ooneenrator and its attorney, The eourt found that the only question 
properly before the court on that appeal v&a the aaovint, If any, of 
additional fees for the oonaervator and its attorney^ In its decree 
the Cifouit Court found that the orders of the Probate Court of 
Jsnuary 18, 1930 and June 12, 1936 were res .ludioata and that the order 
of the Px^bate Court entered May 2, 1941, alloving an additional sum 
of #750 to the conservator and an additional suia of :^3,000 to Mr« 
Adaas, its attorney, was proper, and that the order authorizing the 
conservator to use the assets of the ward for the purpose of reimbursing 
itself on account of overdrafts and to nake payment on the other items 
authorised, was also proper. The executrix appeals fx^om this decree* 
On June 12, 1936 the Probate Court overruled the objections 
of the executrix and aDpi*oved the final report, subject to a future 
hearing upon the question of fees for the conservator and its attorney. 
Ho appeal was taken fron this order. Prior to the entry of this order 
there was a full hearing, lasting several days, v^e agree with the 
Circuit Court that the order of June 12, 1936 was res .ludicata as to 
the account. The only matter which remained for detemination was the 
question of additional fees* We have carefully inspected the record 
and are convinced that the additional fees allowed to the conservator 
and Mr« Adaas, its attorney, are reasonable* Perceiving no error in 
the record, the decree of the Circuit Court of Cook County is affirmed, 

DECREE AFFIRM£D. 

HEBEL AND KILEY, JJ, CONCUR, 



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42517 

IRMA M, MOLT, 





Appell««« 

iSIDING JUSTICE BURKE DELIVERED THE/0PINI( 

Frederick F» Molt and Iraia M, Molt yrer9 married on 
October 5, 1904. On July 28, 1939, Mrs* Molt filed a complaint for 
divorce in the Circuit Court of Cook. County and by a decree entered 
on August 4, 1939, finding hia guilty of desertion, the bonds of 
■atrimony were diseolTed, They were the parents of two boys and 
a girl, all of whom were of legal age at the tine of the decree. 
The defendant was ordered to pay i^65 per week as alimony from the 
date of the entry of the decree. He was a well known oral surgeon, 
practicing in Chicago, On October 4, 1940 he filed a petition for 
a reduction of alimony. After a full hearing the prayer of the 
petition was denied and the petition was disoiiseed for want of equity. 
On May 26, 1942 defendant filed a second petition to reduce the 
aliaony, setting up, among other things, thf t in January, 1942 he 
was called to active duty, being a Oommander in the United States 
MeTal Reserre Dental Corps; that he closed his office, gave up his 
private practice and was assigned to the Oreat Lakes Naval Training 
Station; th^t his pay and allowance for housing and subsistence 
amount to ii^481 per month; that from this he had to furnish his own 
food and lodging, together with certain items of uniform, train 
fares, etc.; that the net sua after the deduction of such items 
did not warrant the payment of ^55 per week as alimony; that he 
was in debt In the sum of f 1,260, which represented money borrowed 






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by hla In order to continue the alimony payments, and thst imder the 
clrcumstsncee it vas Ineaultable that he be rsaulred to continue 
paying his former wife 155 per week. Plaintiff answered with 
allegations of fact nBd exhibits urged in opposition to his motion. 
The matter vas referred to a special ConuBlssioner to take testimony 
and make reooiamendstions. He reoommended that the decree be modified 
by reducing the elimony payments to ^36 per week and thet defendant 
pay to plaintiff for her attorney's fees in the instant matte* 
the sua of MOO, The %>eoial Commissioner, odntrary to the approved 
praotice, did not give the parties an opportunity to file objections 
to his report before presenting it in final form to the court. On 
July 10, 1942, the day the fecial Comaisaionei^s report was presented 
to the court, the attorney representing the olaintiff and who was 
familiar with the case, was out of the oity. An associate of this 
attorney asked that the matter be postooned until July 13, 1942, 
when the absent attorney could appear, stating that no other oerson 
in the fins had any knowledge of the matter. The Chanoellor declined 
to postpone the matter and (on July 10, 1942) entered an order in 
aocordance with the recommendations of the %>eeial Commissioner, 
stating orally th-^t such order would be subject "to the right to 
▼acate the same". On July 21, 1942 plaintiff filed a motion and 
a oetition to ▼: cate the order of July 10^ 1942 and for a re- 
reference. Plaintiff was permitted to file objections to the 
Master's report, nunc pro tunc as of July 10, 1942, The motion to 
Taeate the order of July 10, 1942 and the objections to the 
Speolal Commissioner's report were fully argued before another 
Chanoellor, On July 30, 1942 he oTerruled the motion to vacate and 
the exceptions. In appealing, olaintiff orays that the orders 
entered on July 10, 1942 and July 30, 1942 be reversed^ 

Zn the decree of divorce the court found that the parties 
had adjusted and settled their property rights by a contract dated 



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9 

July 28, 1939, whloh the court d«clsrsd was fair and eaultable* The 
preamble of the contract recited that in prior years defendant hsd 
a ibftrge and lucrative oractiee but that ia recent years his practice 
had declined; that hie gross income from his profession for 1937 vas 
Il4,65e*32; that his expenses chargeable against that income amounted 
to $7,803«40, leaving a net amount of ?7,054»92; that his net income 
for that year was ^7,457,92; that for the year 19S8 the cash received 
for services in his profession was $13,763*00 and that his operating 
expenses were 16,669,63, leaving a profit from his practice of 
♦7,103»37; that there were other excensee and some slight income which 
after an adjustment left his net income for 1938 at ;j;;6, 905*06; that 
a son, Richard, was in college and it was necessary for defendant to 
contribute ^100 per month for his edtication, support, clothes, etc*; 
that the son, at the time of the contract, had graduated from college; 
that two years previously defendant had refurnished and re«equip«d his 
office; that he bad been paying off certain amounts for such equipment; 
that the indebtedness incurred for the equipment would be discontinued 
in the near future; that because of the decline in his income and his 
expenses, he had incurred obligations of $2,600; that he had been 
compelled to go thirou^ bankruptcy; th^t his net operating income for 
the first five months of 1939 was I2,162«4l; that he was then carrying 
insurance on his life in favor of nlaintiff In the gross amount of 
$20,000; that there were loans made against two of the policies in the 
amounts of it400 and ii;839, respectively; that he had no other property 
or earnings; that relying on such representations plaintiff was willing 
to accept "an amount as alimony which will barely pay her living 
expenses and will not provide any amount or amounts for emergencies, 
in order for the second party [defendant] to pay off his obligations 
and expects, and it is agreed that when and if the second party is 
able to do so, he will voluntarily increase the amount hereinafter 
set forth conditioned upon such improvement"* The operative part of 
the agreement orovided that defendant should pay $56 per week as alimony; 



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4 

that he would transfer all Interest in two life Ineuranoe policies 
In the total aaount of 'i-<15,000j that plaintiff should have full 
control of the poliolee, including the cash surrender value, and 
would be responsible for payment of the oremiums, but that she would 
have the right to discontinue the policies. The household furniture 
and fixtures were to reaain the property of plaintiff and defendant 
was to pay her attorney's fees. The agreement further stated: "The 
foregoing amounts shall be, and are hereby declared to be by the 
parties, the minimum amount which first party [plaintiff] shall 
receive; but it is agreed that in the event the second party shall 
improve and increase his practice or otherwise secure a more sub- 
stantial income than as aforesaid; that said monthly payments shall 
be increased a fair and proportionate amount and if the parties 
hereto cannot agree upon such increase then the same shall be subject 
to the approval of any eoiirt which may have Jurisdiction^" 

In dismissing defendant's first petition to reduce the 
alimony (March 3, 1941) the Chancellor found that the net income of 
the defendant from hie profession in 1937 was $7054,92; in 1938, 
^6,905,06; in 1939, S6, 223,27; and in 1940, 5»6,107,17, The Chancellor 
then found that the difference in the net incomes of 1939 and 1940 was 
|116* It was because of the finding of such a slight difference in 
the net earnings of defendant for the year when the decree was entered 
and the period aoproximately one year later when he sought a reduction, 
that the court declined to grant his request^ The income defendant 
has received as a Commander in the United States Navy ooramencing with 
June, 1942 was ;;509,42 per month, or a yearly income of |6, 113*04* 
The Special Commissioner found that the defendant's monthly expense! 
at the time of the hearing weres Rent 147,50; gas and light $10,00; 

food 160.00; transportation ?'22*50; income tax for 1941 3^30*00; 
insurance policy 124.00; uniforms 125,00; professional societies $10,00; 
lunch and entertainment of medical officers *35»00; deduction from 



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, 1;o »fl!00fll \Xi/5«>>ij & to ,(iJflOfli naq 9^«,©0dl asfr S^SX ,4»curlf 

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monthly salary for Govsmment Insurance ^28.28; cleaning and 
laundry |25.00j medical books and peplodioalc 1^5,00; due to H« N« 
Haberstroh 3i,000 on an original loan of SI, 500, being repaid at the 
rate of |50 per aonth; due to John B, LaPue 1150, not being repaid 
iB any particular manner or amount; due to Arthur (>oldblatt, attorney 
for defendant, ?250 for attorney's fees, to be paid at the rate of 
$60 per month. Plaintiff testified that she maintained s four room 
apartment at 1632 East 64th Street, Chieapo; that her daughter 
Patricia, lived with her; that her daughter was a school tescherj 
that the daughter did not pay plaintiff for her board and room, but 
purchased whatever clothes nlaintiff required; that her daughter 
earned $90 a month as a school teacher in Floesmoor and would teach 
in the following year in Homewood; that these are County public 
schools and that her daughter must pay train fare in order to ride 
back and forth. Plaintiff further testified that she paid WO a 
month for her apartment; that her weekly budget was allocated to 
lis for rent, $10 for insurance, including interest on defendant's 
loan on one policy, il5 for food and incidental expenses, llO for 
utilities, including laundry, church, medicine, doctor and dentiat, 
leaving ^6 for emergency use. She had lived in muo> better fashiion 
when rearing her children. They had paid #208 rent at one time. At 
the time of the hearing plaintiff was 59i years old and had never 
had any business experience. She testified that she was not capable 
of doing anything to make a living and thst she was "none too strong**. 
There was testimony that defendant had remarried. Plaintiff offered 
to oroduce proof that the second Mrs, Molt had an income in excess 
of $200 per month* The Special Coramiseioner found that even though 
the second wife "may have an indeoendent income she is under no legal 
obligation to help support the plaintiff herein and that almost all 
of the expense which defendant Incurs each month would exist regardless 
of whether or not he vae married to said second wife". The daughter 
testified as to her income. She pays for her own lunches, railroad 
fare to school, clothes and all incidental expenses and does not have 
■twh left at the end of the months 



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9A ,««i* anc Jjj Jnan 803^ B1«q Sarf ^ed? .fwrtfclliJo iti ^Itaoi aeriw 

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Icfaqa© too asw aria t^At bsltWeeit adC ^aonaitaqxa aaaniaircr xam bmii 

• "itnci^s ootf enon" aa^ aiia ieiiS bam giiiTXX a 9imm ot ^altiS:\am ^lob to 

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8aeox9 nX asoanf as Bail tlcM ^aits linooaa ad^ ifaiUr toeiq •tmbo'Si} oi 

dv-;Kii.' nsv'= : -ds trwot lonoXsaXswcO IfflXoatjQ ailT ^siSaom «xaq 008^ tc 

Xas«X »« i©fefl« ai arts ««oDfli *rt©f)n«q»£ni na av*rf ^jaa* atiw J^aooaa ari* 

XIA tfaoffiXa Jsxi* ban t,l9^md IIWiiXaXq ©ri* ;hio<sjrw» qXail oJ aoXiraaXXtfo 

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6 '■■'■■■■ 5noa9e Biflt o;r AalttBa ijsv'ad Jod io Ttad^aAr tr 

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Sec. 19, Gh. 40, 111. Rev, Stat, 1941, (Sec, 18 of the 
DlYorce Act) orovides that aubsequent to the entry of a decree the court 
■ay, on apollcatlon, from time to tiaas, maJte such alteration in the 
allowance of alimony aa shall appear reasonable and proper. It is a 
aettled law that the decree ie conclusive of the amount of alimony as 
of conditione as they exist at the time of the decree. Alimony allow- 
anoea in decreea, even though based upon agx*«eaent of the parties, nay 
be Bodifled because of a material change of conditions. The question 
presented by the record is whether there has been a material change in 
the income and living conditions of the parties. In the order entered 
on March 3, 1941 the Chancellor declined to modify the decree, holding 
in effect that there was no material ohange« Since then defendant 
entered the service of the United States Navy. At the time of the 
present hearing he was receiving a yearly incoa* of 16,113.04, At the 
previous hearing, as a result of which his oetition for a reduction was 
denied, the court found his income to be i^6,107,17, or $5,67 less than 
his annual income during the year when the original decree was entered. 
It will be observed that no appeal was taken from the previous order 
denying the petition to reduce the alimony. Most of the expense which 
Commander Molt was under at the time of the instant hearing, such as 
rent, food clothes and the like was, prior to entry on active service 
in the Navy, paid out of the net income fz^jm his practice. There is 
no substantial difference between the net income defendant was receiving 
at the time of the hearing in the instant case and his net income the 
year the decree was entered. The burden was on defendant to establish 
by a preponderance of the evidence that there was a material change in 
the income and living conditione of the parties, and he did not sustain 
this burden. There was no Justification for the recommendation of the 
Special Commissioner and the court vss in error in entering the order 
reducing the alimony and in declining to vacate such order. Because 
of the views expressed the orders of the Circuit Court of Cook County 



»<» to Ql ,o*.C) 4X1^61 . ^:)i^ ,iO ^ei ,o»e 

A ai *.t ^nftqoiai 6a4?, tldl^aosseT ijs^ii^ XX«rf« «ij» inroftK iisvoXXji 

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1^ dai/a ^ygfi'isdri #«aJ«f;.? »ft.t te QwXsT afl? ^y 
9»lv*x»3 fi. . !.o t's^ne tajiw a:^iX ad? 6ji* «»?i'1*o.ro beet ,;taai 

tti anajfit .toX^CJiirlc ^^ - /, ;«■.;.•;; »)ff;Of>ni Snn *»ri'J tc ^«c «^Vfi* til* Hi 

©Ml s,!T:r)Of!/ .Ten aid &nja a©®® :fn»3'«rji stt* at '2ni'^:-^^^d ftrit to a«X* exlJ ;^a 

■i.-. .':/ -v ■ /o,i5l)ft«t«D Ko •; 0-' w^f'tfid aii?" , ■Ba^oaJb »di -Taax 

rs.tr;:a.ti''.r! ?, -r aoflaf)!?--: ■-Tc^e'saBiicqwiq a \<f 

Hisa'.. ...i to apic •'■'■'- anooial adt 

taJHc ftr::t ■cni'i'^.tr;*: r, ■ "rr.'^-^i^ n! ov... -i-'titjois aii? fcna •fa«cJtat/ffl(soD X«ioa<(8 



7 

of July 10, 1942 and July 30, 1942 are vacated and the cause remanded 
vith directions to enter an order dlssissing defendant's petition 
for reduction of alimony for want of equity, and awarding plaintiff 
a reasonable amount for attorney's fees and other Incidental expenses 
incurred by her in the proceeding and in prosecuting her appeal^ 



OHOERS REVERSED fvND CAUSE 
RENANDEO WITH DIHECTIONS. 



KEBEL AND KILEY, J J. CONCUR, 



V 






,HUOwoQ ,^v. j'Mii a^:- .uiH.m 



4S540 



a^^-I.A. 1.34 

GEORGE A. KA^ES, Adiainistrator of ^ * """^ 

%h9 Sctate of Peter Zapantls, Deeejtpvff 



RICHTER'S FOOD PRODUCTS, INCORPORATED, 
a Corporatlpjai and JOSEPH VjSKONY, 

'§«f»ndaBt8 - Appelloes. 




I 



WU PRESIDING JUSTICE BURKE DELIVERED THE OPINION OP THE COURT, 

G«orge A, K&wkes, adjnlnisti^tor of the estate of Peter 
Zapantis, deceased, filed a oomplalnt at law In the Superior Court 
of Cook Covinty against Rlchter*e Food Products, Inc., a corporation, 
and Joseph Wekony, charging that the deceased died on June 2, 1940 
ae the proxliaate result of injuries received on May 16, 1940, 
because of the negligence of defendants, and asked davages in the 
euffl of $10,000, Iseus was Joined and the case was tried before 
the oourt and a Jury, resulting in a verdict of not guilty. Plaintiff's 
notion for a new trial was overruled and Judgment for costs was 
entered on the verdiet in favor of both defendants and against 
plaintiff. This appeal followed. Plaintiff urges that the verdict 
and Judgment are against the manifest weight of the evidence, and 
the defendants insist that the verdict and Judgment are in accord 
with the evidence, 

Peter Zapantis was a priest of the Greek Orthodox Church, 
He was 65 years old« Ths fatal accident occurred on Thursday* May 
16* 1940, at about 3:00 p*a» at the intersection of Randolph and 
Halstsd Streets, Chicago. Randolph Street runs in an easterly and 
westerly direction and Hslsted Street in a northerly and southerly, 
direction. There are two sets of street oar tracks on each street^ 



r' 



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2 

Randolph Street, to the west of Halsted Street, le aoproxlmately 
120 feet wide from curb to curb. East of Halsted Street, Randolph 
Street narrowa to the width of an ordinary street, Halsted Street 
has a normal width. The streets forn a right angle intereeotion. 
At the northeast corner there is a small restaurant and tavern« 
On the southeast comer there is a well known z^staurant. On the 
north side of Randolph Street and running in a westerly direction 
from Halsted Street are wholesale and ret«.il stores. On the southwest 
coz*ner there is a paokage liquor store and on the south side of the 
street running in a westerly direction there are wholesale and retail 
stores* South of the street ear tracks, which are near the center 
of the street, the street is marked off so as to afford parking space 
for produce trucks and these trucks, are permitted to park next to the 
tracks as well as to the south curb* To the west of thA vest crosswalk, 
a distance of about 60 feet, and to the south of the street car 
tracks is a "Mo Parking" aone, where cars are not supoosed to park. 
However, cars are freouently perked in this zone and at the time of the 
occurrence there were cars parked in this zone up to the crosswalk* 
There are no traffic signal lights at this intersection. Similar 
lines to show where oars are permitted to nark are marked out north 
of the west bound street car tracks. The defendant Joseph Wekony, 
an employee of the corporate defendant, was dlrlTlng his employer* s 
truck east on Randolph street approaching Halsted Street along the 
eastbound car tracks. The right wheels of the truck were aboui six 
inches to the south of the south rail of the eastbound tracks. The 
truck was a Fprd with a refrigerator body. At approximately the 
same time Rotq Zapantis was walking north on the west crosswalk 
approaching the eastbound oar iraoks. The testimony introduced on 
behalf of plaintiff tended to show that the truck struck Hev. Zapantis 
and knocked him down. ^<>i4ence produced by defendants tended to show 
that he walked into the side of the truck at a point back of the cab* 



a 

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a 

Edward J, Hobc, called by plaintiff, testified that he was 
a machinery dealer; that the parties were unknown to him; that Just 
prior to the accident he was walking south on the east side of Hals ted 
Street preparing to board a Randolph street oar going west; that he 
saw the deceased and also saw the truck of defendant Juet before the 
accident h^^pened; that when he first saw the deeeased, he (deceased) 
was walking north on the west side of Halsted Street; that the deceased 
was on the crosswalk and at that time was probably 10 feet from the 
street car track* When the witness first saw the automobile It was 
about 50 or 60 feet west of the crosswalk* He testified that he could 
observe with an unobstructed view that defendant's automobile was 
traveling 30 or 35 miles an hour, witness further testified that when 
deceased reached the street car track, the tiruck struck him and knocked 
him down* witness thought that the truck was going at the same speed 
from the time when he first saw It xintll It hit deceased, and that after 
deoeasmd tfas struck he (deceased), was lying on the south side of the 
street oar track on the crosswalk* witness stated that defendant's 
truck did not stop until after It had crossed Halsted Street; that In 
fact it did not stop \antil about 20 feet east of the east crosswalk* 
Halsted Street at that point is from 50 to 60 feet wlde« Witness did 
not hear any horn or other warning signal given by the driver. The 
mame of this witness was taken by a police officer who appeared on the 
scene shortly after the accident* Witness further testified that he 
had to yell to the driver of the truck before the driver stopped the 
truck and that then witness and the driver walked back to the point 
where the body of the deceased was lylng» At the request of the police, 
witness went to the police station with the driver of the truck. He 
also testified at the Inauest* Witness further stated that he did not 
see any traffic moving east or west on f^ndolph Street at the time of 
the accident* 



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M&loolB Sohrelber, & police officer, testified that he did 
not witness the accident; that at that time he was about 300 feet 
north of Randolph Street; that he heard sereaalng and saw a oz>owd 
congregating; that when he arrived he saw deeeased lying in the 
crosswaUc about two feet north of the south rail of the eastbound 
oar track; that on inquiry he learned that defendant's trucks which 
was then parked on the southeast corner of Halsted and '^ndolph 
Streets, approximately 60 feet from ^ere the body was lying, had 
struck the man* The of fleer talked to the driver of the truck and 
then called for a patrol car. He made a note of the name of the truck 
driver and also took the name of Ur^ Hobe as a witneee* %e officer 
did not take the naae of Lillian Margaret Fuller, who testified for 
defendant. He stated that she was not there* 

The defendant ekony, called under Section 60 of the Civil 
Practice Act, testified thet his truck vas tcaveling on the right hand 
side, that is, right where the street oar travels; that he drove 
ahead at about 15 niles an hour, and as he approached Halsted Street 
he slewed up* He further testified that "whan I slowed \»p I wotild 
say that I was about 25 feet froa Halsted Street if you oean the 
center of the street. Halsted Street is a busy street. I did not 
see the man at any tiae before this thing happened. The fellow was 
so short I couldnH see hia because he walked between the oars and I 
couldn*t see hia at all. I didn't hit the man. If he oaae in contact 
with the truck that was behind the cab and I couldn't say what happened 
after that. Before the man came in contact with the txnaok I maybe 
got just a gliapse of hia as I was swinging out of the way to get 
away froa hia. wiien I first saw hia I had Just enough time to get 
ay foot off the gas pedal and step on the brake. I would say about 10 
feet froa the crosswalk when I first saw hia*** 

Defendants introduced Michael Regan, a polloe officer attached 
to the Accident Prevention Bureau* He did not see the accident. He 
testified about the width of the streets and the result of his investi* 
gation at the soene of the accident. Josvph P» Piotrowski, rti.riiwr 



»• 



Aeilo^si^i ha&,h9i€lA& "to i^anao ;f3ft«4«ruea 9^ no buAtaq a9dt sav 

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«»<i9ii7 ^eix SAW «ito ta^ ^t»^9 #H •inAi^flslai^ 

evoicib 0iei ^ia4# |aXt»v««xJ nme ;r»9^ifa e4^ ai«4ir ^i^X*! »9i J*3«M :«*ftia 

4a$'2;i<i' &a;|aXfi^ b^Aojunqq^ pA a« £>ius «tJi/oil tm aaXia dX ^&o(i« t« b^tiM 

bJLtiQv.'.l c^ Sew(»Xa X nmAyf*' ioAi d&iliiaa? taiit«[ijl aH «qtf Jba«NiXa ad 

sjlil Haas UGX tl ^aa^irs £>a^aXali siCRit i99l o^ iuedtA a^w X S»iii xm9 

3ca &i: ,t>«<ijra \&»ci « ai jTaan^i^ 6«^aX«H i^»»nt% «£{| to latfiia* 

a^w woix&i sn;:, «&Gnacaail ;^X^ sXn^ siotecf &mti xn* d'a oas a4t^>taa 

1 £)n£ aiita aiif aaaird^a^f J&eaiXisv afl aairaaeff ffiX4 aaa i^aAluoo 1 ^"soila oa 

;S»sSaQ& at. asaa ajl II ^ojub 94:^ #iii jT'oftif' I «Xi« ;^^ «Xil aaa jT'aJbXtfOO 

b9ff.no/4&si i&fi^ x^a^^obXifoa I l>£se ^9 9di j>aXu»o ba^^' i^^^ii^ JitM^t ajU i&iw 

ad'^jas*. X :i.mstt axi^ £tirxw ;ro»«^ao9 ftl aaAo oaa axl;f fto'tetl •^axtif rtatta 

^a^ e9 ^xr' ai:i^ lo tu^ ^X^iniwa a«ii^,^,.|i|||^ ulA tc aaqaXXa a ^avC t9e% 

^9S 0^ &»is Ai0oai9 i9U^ h»A I mXd v«a tnnlt I attf^ ««iil t&oil ^ava 

OX 9&oda "^Q OXtfow X .a^aid axU* ua qad's &«» Xa&aq a«i 9d9 Vxo toQt %/» 

^^ml4 v«© tBtit 1' aachr iXjenaaato ari.? aant *»al 
?>-> j'^^jj-'. ■teoilto aoiXofi? / ,«ase»H XaariolK* b99Ub<ninl aJaabnstaC 

aH .;tnafiioo.3 ©d^ aaa ;rofl &J:I> aH ^tiBaixiti aoXJnavat^ tii«£>XoaA a4;f o? 
-ilTsavnX Bid to itXwBai ajjtf £«i a*a©^ffc arW ^o dtf^bJhf ariJ Jwoda ftalti^aair 



another police officer attached to the Accident Prevention Bureau, 
testified as to an investigation Bade following the accident « 

A deposition given by Lillian Margaret Fuller was read to 
the jury. She testified that at the time of the accident she was a 
bookkeeper enployed by the corporate defendant; fthat at the tiae the 
deposition vae taken she was not enployed by the corporate defendant; 
that in the meantime she had married; that at the time the deposition 
was taken her husband was in the employ of the corporate defendant; that 
she was riding on the truck at the time of the accident; that when she 
first saw the deceased he was coming out from between some parked cars; 
that he was at least five oar lengths back from the crosswalk; that he 
walked into the box part of the truck, which was that portion of the 
truck behind the driver's oab. She further testified that when she first 
saw the deceased the driver of the timctc in which she was riding swerved 
the truck to the left and made a sharp turn; that the driver stopped 
his truck and got out; that he went around the back of the truck; that 
a policeman came over and directed that the truck be ptilled aci*088 the 
street; that the driver did so and parked it on the east side of the 
street; that she remained on the truck about five minutes; that she 
then got off the truck and stood on the corner; thst the driver of the 
truck then went aoross to where the man who was struck was lying; that 
the man was taken over to the curb; that she remained there from 20 to 
25 minutes; that she did not ^alk over to where the driver was; that 
eventually she boarded an eastbound street oar and went downtown, 

Norman C, ^oughlin, called by defendants, testified that at 
the time of the accident he was driving an automobile north on Halsted 
street; that at that time he had oulled into Halsted Street about 40 
feet; that trucks were parked on the west side of iRandolph Street to 
within three or four feet of the crosswalk; that the truck being 
driven by Wekony was proceeding east in the oar traoks; that when he 
first saw deceased he was about three-quarters of a car length from 



9 

;d"«N5M9'i«J& e^s«to«rio© bUS 'id fc«^eX^» *«fl eav tiie n»3itt^ »aw «iel;ri»e^ft 

5«S^!»o Sft^'UBt? «e<» in>*nr*»rf irtw^ sfj/© |(Ai«no ej»w •!< il»«*»d»A *ri# use .tn^/l 

9ri t4jS* ij£lsi*84©*so firif fltont ieM eifetantX tb» evil tM»I *« s«v »«! J^ift 

•$ii* tt> lielt'socf tans 6j!rr fl«iitw ^ev^^ •ritT te tiai? *<x* *^ •^^-i fctii*w 

Js^fil aria fl^ri^ Jail? 6©J:llt««># •r^iiS'iB'i 9£i« ,^»o f!H«iri«!^ •!» IMiiliMr 3l«»«* 

ft»<,'q«f8 ii^Tl^fe eii* fBitt itnxt crs*JS« « •&«« fefl* ;r^i *A? «r# ji»«rra^ »ft* 
tMA3 ;M&n^ «^f "te jC»dd »d^ !bnu<nn t^fw «A tMt \tu<b aro^ Siub jCoirnt a iff 

site tMM in&i&nlm 9Vt1t JBod« Mtmns ^A^ wo ,?>#els««*t «Ji« taiAt ]te«itB 
oiU tc ^«rjh[fc ©ii* t*d* yt*fi^®o »rf* *o &««*« Imhb jE©tf«t^ sU^ t^o #«8 MM# 
:r;$ij[if S3fti%i saw £oini» dBif odw Hii^ dil^ st9it«r ot saortM :r»«»ir ii«ri^ Holistt 
o^ OS so^l #^fifl;r MtiiAKi^ 911x1 ;f«^ tt^tss aii:f o? tov« n«itet ««v Asa tdt 

■^Att 5a»w i^vjtife *^? ^9s!m 0* ^*To ilfl^^ *ofi bib 9i$» t«ri* ;t»ttrala 88 



c 

th« •astbound street ear traeks; that deceased was walking north; 
that when he first saw the truek It ^ras 60 to 80 feet west of 
Hals ted Street; thst as he observed the truck approaching at a 
distance of from 25 to 40 feet west of the crosswalk, It was pz*ooeedlng 
at a speed of approximately 20 miles an hour; that deceased stopped, 
looking up at witness's oar; that then deceased, without turning 
his head or looking back, and still >ratching witness's oar, proceeded 
north and walked into the side of the truck; that deceased was struck 
toy the box that stood out in back of the cab; that deceased spun 
ai*ound three or four times and was thrown several feet east where he 
lay; that he did not know whether the truck changed its direction 
before the contact; that the truek then proceeded across Halsted 
Street in front of witness's car; that the witness parked his car 
about a block away and came back intending to assist the man who had 
been struck^ and that in the meantime others were assisting him« 
Witness could not say whether the driver stopped his truck immediately 
after striking the deceased^ Witness did not give hit name to the 
policeman. He did not know the driver before the accident* He 
testified further that about a week after the accident he was driving 
Ms oar at Foster and Kedsie Avenues, about ten miles from the scene 
of the accident; that he observed the driver of the truck involved 
in the accident; that he pulled \xp alongside of him and inquired about 
the accident* Witness also testified that at the time of the accident 
there was no other traffic going north or eouth on Halsted Street* 

Plaintiff states thst it appears from the evidence and 
without cueetioa th$t deceased was a pedestrian rightfully crossing 
an intersection; that he was in the exercise of ordinary care for his 
own safety; that the driver of the truck^ by his own admission, came 
within 25 to 50 feet of a busy intersection and struck the deceased 
without giving any warning of the aoproaoh of his truck; that he 
struck the deceased without seeing him before he was struck; that he 



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then proceeded on eoross Hale ted Street for a distance of 80 feet 
without knowing he had struck or Injured anyone until the witness 
Robe called to hiffl to stop his truck, and that s.s a result of the 
truck striking hia the deceased beeaae unconscious and died« Plain- 
tiff states that these facts spell negligence, asserts that liobe 
was a disinterested witness but that the defendant Wekony and the 
witness Fuller were not disinterested, and that witness Coughlin 
■erely "dropued froa a wery dark and very questionable cloud". Outside 
of the individual defendant who was called under Section 60 of the 
CiTil Practice Act, Mr, Robe was the only occurrence witness called 
by plaintiff « Defendants relied upon the testiaony of Wekony and 
two other witnesses, namely Fuller and Coughlin» It is apparent that 
the testiaony of Robe was contradicted on practically every material 
fact to which he testified* The testimony of Wekony is corroborated 
by Coughlin and Fuller, Kobe testified that the truck struck the 
deceased and knocked him down, while witnesses Wekony, Fuller and 
Coughlin testified that the deceased walked Into the side of the truck. 
Witnesses Wekony and Fuller testified that immediately after the 
Iflipaot the d2*iTer brought the truck to a stop and that he did not 
cross the street until after he had been told to do so by a police 
officer. There was testimony thr-t cars were parked in the "no parking* 
zone and that these cars were parked up to the sidewalk on which deceased 
was proceeding. In discussing the testimony of witness Fuller, 
plaintiff calls attention to her statement that she remained on the 
truck for a few minutes, then stood on the comer for 25 minutes 
without talking to anyone, not even the driver, and that she then 
took a stz*eet car and went on downtown. Plaintiff argues that this 
conduct is contrary to what is usually termed "feminine curiosity". 
Plaintiff also criticizes the testimony of witness Coughlin, pointing out 
that this witness did not give his name to the police officer, but 
that a few days after the accident he saw the truck driver at a place 
several miles distant from the scene of the accident, st>oke to the 
driver and gave him his name and address as a witness. There is no 



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... ^n«^Sitqqib. c. .. 4>^ilXiisfiro9 J9«ta loXXif'S xXea«<i ,etsa»a;7Xw isxC^o owt 

i^cn 6i6 1^ #aiW fen* qota « at atoiwiJ «i<3' Jrf^i/e^d 1»Y^t^ -■''■• •laqal 

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ij«iig^«SBQ ofl" «xJJ Hi J&ttjihjta ©1SVT »^«o t^Ai xaQmtts9:f a«w eianT «t»om« 

~ fiQi;AM m 3iXAV»£Xe e£[^ oi qis b9tt&q ftiev siao •»9Ai ^aAS bOM •not 

,n3lXfir'9 Qu9attvi to inoffX^Boif 9ii^ S^^^'vos-^ ^^ •SAlJbstoe^xu ■«« 

a©*fif«iia ^,3 tol I'Sfinoo sttJ a© hoeta ftti;») ,as*wni«i t?»1: a lol ioin^ 

««fijr e^ ?«i4;r Ms ,t®vi'iJS> oii:r a«ft'" '- tSnoxii& oi ^LAlMi iuoAit-v 

ulAt imAt B9tt'^ia 'fkUtii&l^ ^awefa :amj btia inn t^ttiu m Ac^t 

/'^:.tfj?c/''ffo »nXflXfl«8t" bfiicn^t ^XXju/c .Iw oi tiAtd'neo eX iTMfiSao* 

.«., ,190X^10 f"^— -•* - ■- - -«- --' ' ^-f; s8«iiJXv oiAi is^AS 

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8 

dlflpute that deceased ha4 a ri^t to walk along the eroeswalk. Deceased, 
however, was reoulred to exercise ordinary oare* There was proof 
that as he walked north along the crosswalk at a point where o ars 
were paired, he was looking in an easterly or southeasterly direction 
or the opposite direction from which the eastbound traffic was coming 
and walked into the side of the truck. In our opinion the ease 
presented a question of fact for the jury. The Jurors saw and heard 
the witnesses, except Lillian Fuller, whose deposition was read to 
theffl« We notice that nine of the twelve jurors were women. They 
were in a better position then this court to determine whether the 
testimony of Lillian Fuller that she observed the occurrence but did 
not disclose her oresence, was the normal reaction of a woman under 
such oiroufflstances. We are of the opinion that the trial Judge was 
correct in deciding that the verdict was not contrary to the manifest 
weight of the evidence* 

Plaintiff maintains that the court erred in refusing to 
atelt eertain proffered testimony as to the transmittal by deceased 
of funds to his family in Greece. The evidence shows that deceased 
was 65 years of age; that he left his family in Oreeoe about 25 years 
previously; that he had not returned to pay then a visit; that on 
the day of the occurrence Reverend 'apantis had sent $40 to his 
wife in Oreeee; that he had five children, the youngest child being 
£5 years of age; and that two of the children resided in this 
country. The administrator, who is a son-in-law of deceased, testified 
that while the deceased was in the hospital he gave him (plaintiff) 
$100 to send to his wife in Greece, and that witness sent the $100 
to the widow on June 8, 1940, which was six days after the death of 
the deceased. The court held that evidence as to the tlOO item was 
incompetent. Defendants contend that there was no error in this 
ruling. The trial Judge was of the opinion that the death of Reverend 
Zapantis terminated the authority of his son-in-law to transfer the 
funds. Defendants argue that the sum of VIOO was a gift which could 
be revoked before actual delivery and that the agency of the son-in-law 



% 

8T[E »«t»i!6tf taJioq B t» 3ilAV9B9v» 9A^ jpToife tii't&a bttilev Mf ■« tTsitt 

Gi b!i»% a«w aGiilAoq^b *swJif ,«i«XXtf"? OaIIXIJ J«E»e«« ,a»9i3«f!^iir 9H# 

bib iud #©ttft^i:j^©0€i »d* Aeimsado 94a tsri^ neXXcIf a^iXIiJ to xaoattu9t 
isiimt asasm & to net^smvn XMateat mit sav ,$9ii9«»?q *E8>fi fMoXosXI^ ^ea 
ami 9^Mit l&t*ti toLi ^sjii noiaiqo luAi to 9*is oW •a»ofts^9A0dnri9 Jl9»a 

f>«aii«#«i^ ^434^ aweils 9&a9f~>lV9> »itS ^eet»9«d fti tXii»st ejtif 9i stiitrt to 

p.'i ssTE^S iutida. &&»0%i^ »l \Slm.&t airi tftaX »il Jsii&r ;♦§« t© a*tA»x fid tmir 

no t&^ l$iB£y » tu&as !•<! otf bBtntsS^'i dan Jj^ail Mt ^isift ;tX««reiv««iQ 

^Ql9^ blldQ Ss^ism^x •M «fian&XiiiD arit Jb«<f 9fi fsAt laoadu^ «i ativ 

slda ^i &a&ia»^ net&XMe ^rfcT to owcT SeOt tm lay* te a^aai AS 

B«ili;}3Sir «&»e!A<»aaj^ ta ««X«NSi'-2ie« £ ai osi» ^^Qimt^taltalbu aitfT ,ti;fnveo 

( tti«r£tial^} «i4 av«s «<i I&tlq9<^ bjAS at mskh b0^i999h 9ifi aXii!w tttdt 

00X4 »ii$ i!tn9« aeaftifiv :^iEuit j&ft« ,a»«»<id iVi etitr alii o> Jbiae ot 00X9 

to A$j3fib 9sk3 <xa#t& i%t»Jb acia Sis? iialtl« ,Q*^eX ^B aotirl ao «#Aiv ert^r ot 

asvr na^i 0OX« 9<i;^ 9^ as •orrafiiva tali;t fiXad fwatf a<£T «fcfte«aa«fi adif 

eJUi$ nX •zo^i«» ou a,«sw e^fiS^ iTACk^ £«a^/rr»e acTruidfliatall .irnataqpaoiii 

toatevaH to fi^m&b 9M tAiiS ootRiqo &6t t© aaw »»fiwt X&X*ii^ »rfP .fnlXi^ 

aii:t lataUcBt? u* w*X-«l«-«Kia bM to tJ*"*wi*iy- *"1*^ 6«st»nl«n*:r alsToaqjaS 

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9 

was revoked on the death of deceased, i^li£le this is true &e an 

abstract proposition of laW| ve are of the opinion that the evidence 

as to the delivery of the $100 to the son-in-law, with instructions 

to send it to deceased's wife in Greece, was adjaissible, as It showed 

the Intention of deceased to contribute to the support of his wife. 

The parties are in agreement that the law presuaee some substantial 

daaages where the next of kin of deceased are lineal and not collateral, 

fr«a the faot of the reletionshlp alone. There was evidence that the 

deceased sent aoney to his wife. In this case the faot that the court 

struck the evidence concerning the $100 did not harm the plaintiff* It 

is apparent that the Jury found against plaintiff on the proposition 

of liability and it was not necessary to consider the ouitter of damages. 

Plaintiff insists that the court erred in permitting improper 

conduct on the part of defendants' counsel in the trial of the case 

and in the argument to the Juz7, and that as a consequence the verdict 

was the result of passion and prejudice. We have examined the record 

and are of the opinion that counsel for defendants was not guilty of 

improper conduct on the trial or in his argument. Finally, plaintiff 

complains of the action of the court in giving instruction Mo, 19 

at the instance of defendants, as followst 

"If, after you have considered all the evidence and applied 
the instructions of the oourt to the law, you find that the defendants 
are liable, then you will be recuired to consider what damages, if 
any, the next of kin have sustained by reason of the death. In deter- 
mining the amount of damages, if any, you must be governed solely by 
the actual oecuniary or money loss, if any, as shown by the evidence, 
that the next of kin have sustained by reason of the death. You cannot 
allow any damages for sorrow, bereavement or mental suffering of the 
next of kin of the decei|sed, nor any for loss of the society of the 
d«eeased« 

On motion of plaintiff the oourt gave the following instruction) 

"The oourt Instructs the Jury that if fi?om the evidence and 
under the Instructions of the court you find the defendants guilty 
as charged in the olaintiff *s complaint, then in aseessing the damages, 
if any, you have a right to take into consideration all of the testi- 
mony bearing upon that question, and allow such damages as you may 
deem a fair and Just compensation with reference to the pecuniary 
injuries, If any, resulting from the death of plaintiff's intestate, 
to his next of kin, and in assessing the olaintiff's damages you have 
8 right to take into consideration whatever, if anything, you may 
believe from the evidence his next of kin might have reasonably 
expected in a pecuniary way from the continued life of said deceased," 



t# ti^i^i^ *«-a »«'»' ^ttiskmj^'-^ -"•'" r8«iiif«0 ir**i5r «eifti<^ ni&t t^ rx« Siui 
tt*;risifiiiq[ ,t;/l&Hi'S ^smarn^^^ -.^ Ux ni •$«» Isttt ®jit «i> ^iwjlitoo ^tt^^oagai 

■*■■ -i-^o eoY .titM^k --'" '"-^ "' •• ■ v;: '-:■■ '■■'■■ ■: ■■ ^ ,-j ♦d^ tflii* 

: TLlmt '» nmtb 

■■■■''"' to ;'a-. .. iTiorrt evsllotf 

t^di & c xii ^s^tQdcpKt 



10 

Plaintiff urges that Instruction No* 19 ignores oespletely the pre* 
suaption of pecuniary loss and fits into the argument of defendants* 
counsel to the Jury that there vas proof that deceased had not con- 
tributed more than ^40 to his family. This instruction deals solely 
with the matter of damages. As the Jury found defendants not guilty, 
it was not necessary for them to consider the matter of damages* How* 
ever, as to plaintiff's contention that instruction No* 19 completely 
ignores the presumption of pecuniary loss, we note that plaintiff's 
instruction on the same subject, which we have i|uoted, also ignores 
mentidn of any presumxition of T)ecuniary loss* We do not approve the 
giving of defendants' instruction No. 19, However, under all of the 
circumstances of the ease, we are of the opinion that the giving of 
this instruction was harmless. We are satisfied that the case was 
fairly tried and that the action of the Jury in resolving the issues in 
favor of defendants is supported by the record. Therefore, the Judgment 
of the Sv^erior Court of Cook County is affirmed* 

JUDGMENT AFFIRMED. 
IILEY, J. CONCURS. 
HEBEL, J. DIBSSMTINas 

Z •• unable to agree with the conclusion reached by the court 
affirming the Judgment that was entered by the trial court on the verdict 
of the Jury which found for the defendant. 

From the facts it appears that Peter Zapantia was a priest of 
the Greek Orthodox Churoh. He was 66 years old« The fatal accident 
occurred on Thursday, May 16, 1940, at about 3tOO o'clock P.M. at the 
intersection of Randolph and Halsted Streets, Chicago. There are two 
sets of street car tracks on each street. The streets form a right angle 
intersection. The Reverend ^apantis was walking north on the west side 
of Halsted Street and was on the crosswalk crossing Randolph Street* 

There is evidence of the witness Edward J. Robe who testified 
that he saw the deceased and also the truck of the defendant Just before 
the accident happened and thst he saw Zapantis on the crosswalk and at 



01 
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11 j 

the time he vae probably ten feet froai the street car tracks; that 
vben the witness first saw the truck It T^as fifty or sixty feet west 
of the crosswalk. From this witness' stateoient it appears that he had 
an unrestricted view of the defendant's truck, which '^as traveling at 
between 50 and 35 miles an hour; that when Zapantle reached the street 
car track the truck struck him and knocked him down. As the result 
of this Peter Zapantis died« The witness further testified that the 
truck was going at the same speed from the time when he first saw it 
until the truck hit Zaoantis; that after the impact Zapantis was lying 
on the south side of the street oar track on the crosswalk* The 
witness further testified that he did not hear any horn or warning 
signal given by the driver; that he yelled at the driver of the truck 
before the driver stopped^ and that then the witness and the driver 
walked back to the olace where the body of the deceased was lylhg« 

It appears from the evidence of this driver, Vimkony, that he 
did not see Rev* Zapantis before he came in contact with him; that he 
claimed he Just got a glimpse of him as he was swinging out of the way« 

There was a further witness, Norman C, Goughlln, who testified 
that the car was operated at approximately 20 miles an hour; that the 
car struck Hst. Zapantis from a olace in back of the cab; that Hev* 
Zapantis spun around three or four times and was thrown several feet east, 
where he lay; and this witness did not know whether the truck changed its 
direction before the contact. 

It aopears also in this record that a deposition of Lillian 
Margaret Fuller was read to the Jury* She testified that at the time 
of the accident she was a bookkeeper employed by the defendant, but at 
the time the deposition was taken she was not emoloyed by the company* 
From the testimony it appears in the record that she was riding on the 
truck at the time of the accident* Her statement is that the H«v* Peter 
Zapantis was coming out from between parked ears and that he walked into 
the box part of the truck, which was the part behind the driver'^ cab, and 
that the driver of the truck swerved the truck to the left and made a 
sharp turn, stopoed his truck and got out and went to the back of the truol 



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ir-ft^Js «fi;r 5exlais£i'j alJciiQsi. nsiiw ti'iiii' jtwori a© aeX^c sSS &fl* 06 iio»vJ»«l 
9x1;? ?c£iJ ^^iti3-a«'t •j»£{3'«uj^ saoff^^iw e/iT <^b9fj> sJtJosfljjBS fisJt^ tJt/1^ to 

igsinisw io moia xsm r»9A tea hlb ^d i^tii .6©niJ8«;r ^adlnurt assntiv 

n^^itfe ert? bfis f^safljTiw «£t* ii«ri^ *sifi;r btL& i^»<jco;f« «t9Vi'»5 erf* ••soled 

yrj, .t<ixi:.r |©lii ijfjiw JsA^nco ai «ffl»© «ii <i'30l»<l iiJfiaqsS ,v«i! S9e ton l^lh 
.Yaw aiJ3- 1o 3uo sflls^iwn aiiw eri ea mid lo ®«qmiXs « *08 ^wt «** *»«1»I0 

«ii* JesiiJt itfSXiti tt& nsllsi OS ti^*«UBix<wqqB tfi M*st*cro a«w -x*© sdJ iasi3 
.v©fl ^riii? jdfi© 9fIJ Ic iov'stf ai »9aJUi jU mont eiSitjaciaS ,v«fi iorxJo tat 

HisiXXlJ tc coiiJlaocrslJ b ^mU Mocsi siri^ iiX oaX» iMtBeqctfi *I 

*A Jwcf ^*fijBl)n$1tfife ©ft? x<d i>9XoLf^» i«<|»8'X3iofecf ajiv 9Aa int.bL09» oiW lo 

♦TCa»<?»«s> 9Sii '^cT 6»MC5lqine cTon fiBi^-r eila n^^tat saw noi*J:800[»*) (MiJ <Miit ^iW 

sitJ nc gni: ' flila JariiJ^ Bnoeft's oricr fii aiaoqqis SI %aeml:f9tS 9tit manl 

»it^:tF/j , . ■••••: Bmti 9tU i» i^int 

oinX li»-ifi i'ltjj H't&o h»±itiq ii«»vfi?»<i moil 3uo aaifBoo a«w BX;^n»QjiX 

(115 «ci'to e^^ievi't*' tvfij JbMJtiled Jijiiq »n aXriw ^Jipurj? »fl^ "io ;N«q xocf •«!* 



12 

It appears fz^>B this atateaent that there Is a contradiction between 
the evidence of this young lady and that of the driver of the truck. 
The driver, as ve recall it, did not see the deceased in his lifetiae 
\xp to the tiae when he vae killed, but the girl vho was seated on 
the truck with the driver said she saw him and that he walked into 
the box part of the truck. 

When the speed of the ear is considered from the testimony 
of the witnesses who appeared there, it is apparent that its speed 
was such that after the contact the body of the deceased was spun 
around three or four tiaes and was thrown several feet east, and that 
fact does not indicate the speed of 12 ailes an hour testified to by 
the driver of the truck as being the speed at which it was going at 
the time of the iapact* 

There was no warning given, and the driver apparently did not 
see the deceased before he was struck, and then the driver proceeded a 
distance of 60 feet after he struck the deceased* 

It appears that in that busy section at Halsted and Randolph 
Streets Wekony was driving at what one witness stated was 50 or 35 niles 
an hour at the tiae Just previous to the accident. Even the witness 
who failed to give his name to the police officer at the time of the 
accident testified that the truck was going 20 ailes an hour. So that 
as the driver did not see the deceased Just before he struck hia and 
did not signal or give any alara, it is apparent from the record that 
he was operating the truck in a negligent manner. 

There is not anything that the deceased did that would Justify 
a conclusion that he was guilty of contributory negligence; he was 
walking on the street at 5: 00 o'clock in the afternoon and the daylight 
was sufficient so that the driver of this truck should have seen hia« 

So, considering the facts as they apoear, I reach the 
conclusion that the court was in ex*ror when it affirmed the Judgment 
that was eptered upon the verdict of the Jury finding the defendant 
not guilty* 



91 

®tf,iietll &^ix ai. J3S83®*«JB sjiu ftoR tfen s; ' . Hade's *w e« ,t«TJhift eiff 
lie fisifssft a«w ©If'- ' ■ •?<!* iiUcf ^Ji^GlllJ, scv «^ fltMt«r «ait MLt oS <ps 

'i-v®^' j..?i3(;t ^fmiw-CMs @i ^Jt ,«<t9i[t J»«7s«^(^ eAr tgvmtm^JM aits' )o 

ion &i& ■^I^ajrtaqcft 'snyJtnb «.«.* &nui ^n^rlsj gKintjBv on bsit wrsd? 

iiii£v &iri idu*t:r«) i»ii «^o%««r ^a«t £MNR^s»»Jb^ t^M «99 ^0ii Bli£ •^evitfi «ifS »« 

,«ixi a««i »v«*l felweii* Jl««!icj iiid^ to a«yltij& «&<tJ crji^S" «» ^rrsioXtlwa •«« 
tfx&flt^tft ^i^^ inbtnlitu itl sunbf •xcnin» xtl ft»v f«iK)«) a/it SMti$ iioiAJL«X«a«« 



42551 

GEORGIANA Q, HESS, Individually and as 
Adainietratrix with the will Annexed of 

the Eftate of Georgiana L. Gilbert^^^^^^' 
Seeeasedf .-^^vf^^*' 



HELEN S. GI 
and H, A^ 




i£«^" 




, VICTORIA C. SELSON 



Defendants - Appellees, 



MR, PRESIDING JUSTICE BURKE UELIViiirED THE OPINION OP THE COURT, 

Helen 3, Gilbert and Georgiana Q, Hess are the daughters 
and sole surviving heire and next of kin of Georgiana L, Gilbert 
and Hiran T, Gilbert, both deoeased, Geoi^iana is divorced and 
Helen is a spinster. The mother died at about 3:00 a.m. on 
January 11, 1935, and the father died on November 29, 1939. On 
September SI, 1899 the mother beoame the ovner of the real estate 
commonly known as 6234 South Woodlawn Avenue, Chicago. It va« 
improved with a three story frame fourteen room house, with a 
garage in the rear, and was ocoupied by the parents and two daughters. 
Hr, Gilbert remarried on June 1, 1935, He then moved away from the 
premises and lived with his second wife at a location not disclosed 
by the record until December 23, 1936, At thet time Mr. Gilbert 
and his wife moved into a three room apartment at the Del Prado Hotel 
in Chicago. His second wife died in May, 1936. On July 31, 1940 
Georgiana G, Hess, individually and as administratrix with the will 
annexed of the estate of her mother, filed a complaint in chancery 
In the Superior Court of Cook County against her sister Helen L, 
Gilbert and Victoria C. Nelson and H. A. Nelson. She alleged that 
in a will made by her mother on August 24, 1917 and admitted to 
probate on July 22, 1940, the Woodlawn Avenue real estate was devised 
to the two sisters in equal shares; that the premises have a reasonable 



t^tH 






?tetf%.t 



^-y'vJX/ . ■ 'lOfci? tc ■ tiefl &n« «*xl«if -^Ivt'fmm •X09 dJR» 

M f--^-^' ' iwsw' ««'«*^BC!t <»i»Sf'x1 T^eJ-ft «^«td? ^. Ant^ J5«TCT;q»l 



ixTA&llI 



OA(>r ,j3 tx«^ uQ .♦5tx ,tftKn.; 



•9*1 ff WIS'. 



■-■rem t^' oa 

. «n«lfno9t3 

^ YXu^ no ^JacTonq 



8 

rental value of $125 per month; that about September, 1935 Helen and 
the Nelaone fraudulently conspired to deprive her (plaintiff) of the 
use and benefit of the premieee and of the rente by falsely pretending 
that Helen was the ovner in fee simple of the premises by virtue of 
a warranty deed from their parents to Helen dated November 7, 1934 
and recorded at Is 17 P.M, January 11, 1935; that the warranty deed 
was not delivered to the grantee during the lifetime of their mother 
and ^as never intended to be delivered during the mother's lifetime; 
that it was not recorded until about eight houre after the death 
of their mother; that it vaa void and ineffective to convey any title; 
that the defendants, in furtherance of their conspiracy, entered into 
an agreement whereby the Nelsons were pemitted to enjoy the use and 
benefit of the premises under a pretended lease without the payment 
of any rent; that to accomplish this puroose Victoria C, Nelson, 
as the pretended lessee and in collusion with Helen, brotight an 
action against plaintiff in forcible detainer In the Municipal Court 
of Chicago, which resulted in a judgment finding olaintif f guilty of 
withholding the premises from Victoria C, Nelson, Plaintiff further 
alleged that the Municipal Court of Chicago did not have Jurisdiction 
to try the title to the real estate; that she was unable to make 
any defense to that action; that on November 15, 19S5| after the entry 
of Judgment, she was obliged to and did vaoate the premises; that 
■inoe then the defendants have been occupying the premises together 
to the exclusion of plaintiff; that the defendants have damaged the 
interior finish of the premiaes; that on December 16, 1935 there was 
recorded a declaration of trust by Helen in which under date of 
November 7, 1934 she declares that she would hold the title to the 
real estate in truet for her sister and herself for the ourpose of 
converting it into money, rF>taining one*half of the proceeds and 
paying over the remaining one«>half to her sister, the latter to be 
paid only into &eorgiana*s own hand for her own sols support and 
maintenance and not to be assignable by her or subject to any liabilities 
which she mi(^t contract, Helen agreeing to consult her sister as to 



" " ••■»mro o/iJ 3jav ««X®H taift 
i^c'i, t LW-/oi'i £.&j'..i£' ueXe-M Cj :;iifn£TAc 'ilsuEJ aont Jfe»»J!> "t?fl«^av « 

'^'sai) ^iiz%ijsv 9At t.^.A^ jasex ^XX xiituih'' . . ' ':" B«&'zqosi J&a« 

^littfe edjf 's«itft« SitMis^ itst-^t& 9vw.e lltmt X>uuiu^^i sost c«ir IJt tAjfiLY 

;i»X;fl(r %nsi x^vsu^t' ot 9VW©ell:efiX j^tfis Jtiov ssw ^i ifitxW |^ft«l?oin *iX»jW lo 

o^-iHi ^i- j^aa^iqenoD ii»ifi^ te aonant^^it/t cii ^•iixsJ&ifes'ie^ «{? YMit' 

;tn$ei-^tj »£i# j^j^i&ii^iw 9&mb1 bf)bttis^fi^q a ^ror&fw R^slsaft^ 9fVi to ;fXl«AMf 

^eaeXeli .5D aiic^ojLi' «>8o«;'«tiT- 'ialXysiasii* od' ;r«ii9 j^««n tfiis to 

n;% ? (,as>Xo>i dtXv ^Qitajtii.«& nX £xns e«aaoX b^baBSiatq mMH* 

lo %S^lttrg t'ilii'U&lq ^IMlt 5fj5?«sa^-«t & ai ^?rx««9^ lioXflw ^c^olr^'- lo 

•r©^#Tu;t 'i.lXifiXsX'? .aofiXei^ .^ aiioJsJtV iwwt seaXswaq 9tiJ jnXJb/oriritfXw 

Roi2r9i:>Ei<3J8t etr«ii #oii Mi> e;pi»iii«> to t^jJoO Xi&qlsXfliiK »d^ fjui^ J^g^^^A 

■%-rim «iW 'jts^ti^t t§^X ttJX ^«<^in»?t>*{ fio *4Mfe? ;aeXtSM ifisrf? oi 9309 19& vus 
^i^^ i^^aifeSKqi »tijf 9^Mi0.z-r bib l'Cu^ &S B»^Xdo amv vnta ,jra#ai:4£>^L to 
'A$ir^i2!$ @0@Xa9n<; oii;^ ||eX^ccjXfe)«o fl&«d e'«ui£i ii^a£X>£i«tdi> s^xi^ £i«>ii^ »9alB 

s^w e«i0ffcr €5^1 ^ilX i«tfffi»o»' : s>alB«'ia ?^* to 4sXiiit noXte^Ai 

■ssib rrfriMsii /^oi/iw ai n«x«>^. xa ^f^tnit to ftai^£<voXo«£ » &*Jbioo9<i 

lb£tn Bh0&poHL Q!ii tf tXjMi*®fl© gfllnijyttJi ,is«nor olfli /^ovnoa 

( i i.iiaX wi^ «^is*9Xa •?«/{ c* tX«ll*««c sKJ-^t^**"*^ •^ •'♦^<5 i*«Xx«q 

hOM t*toq*wu mXOia mto te iihvd (Two ^'aftji(isn»9H) oifni xXao bl»q 

:^iltii&ll xaa ci iof>l6ti^ 10 •tUl i|cr t^Xdj^^^XaaB »Gf o^ $ett baa •otUM^SnlBm 



3 

the price and terms before making any sale, providing Seorglana 
reullni in the city, and that In ease of the death of either eleter 
before dlepoelng of the property, the proceeds of the sale to go 
to the stirrlvor. Plaintiff alleged further that thle declaration 
of tzoiet was In fact an adalsslon by Helen that the pretended warranty 
deed of Novefflber 7, 1934 was not to be delivered until after the 
death of the grantor; that Helen fraudulently pretends that she la 
not obliged to account to plaintiff for the reasonable value of 
the rente; that oa March 1, 1935 plaintiff recorded an affidavit 
asserting that she was the owner of an undivided one-half Interest 
In the r>eal estate and that the warranty deed dated Novefflber 7, 1934 
was not delivered during the lifetime of the grantor* Plaintiff prayed 
that a decree be entered finding that defendants wrongfully obtained 
and kept possession of the premises, requiring them to account to 
plaintiff for the reasonable value of the rents from November 15, 1935; 
finding that the warranty deed dated November 7, 1934 Is void and 
Ineffective to convey any right, title or Interest; that the declara- 
tion of trust of November 7, 1934 be declared void and Ineffective 
to create a trust; that the Judgment of the Municipal Court of Chicago 
entered In the forcible detainer case be declared ineffective to 
determine her (&eorglana' s) rights In the premises; that In the alter- 
native, should the court find the deed dated November 7, 1934 to have 
been duly delivered that Helen be decreed to account to plaintiff 
for the reasonable rental value of the premises as a trustee; that 
the plaintiff have the right to occupy the premises as a beneficiary 
under the trust; that plaintiff have the right to recover the amount 
by which the premises were depreciated and damaged; and thfit she be 
allowed a reasonable attorney's fee. Defendants filed a motion to 
•trlke the complaint on the ground of plaintiff's laches. The court 
reserved this point to the hearing of the ease* The court struck 
the paragiraph of the oosiplalnt which asked for the allowance of 
attorney's fees. On October 31» 1940 on motion of plaintiff, certain 



ti^5 a:- t . . ?jis,is €»<:<« its otetod 

to ftolsv «i;<:;f&i!C!«'5f''* »??» ^e^ ItlJnjt-a/oi ot tai?*©©* atf £t©silcfc ^on 
Jaorj^^tt^ lJ[i!irt-«n?c liaiaiviftRtf ii« to twwro »i?t n^v ftifii ?ai!* ^aff^ttda 

53£<?j[ ,SI i$^j9^vo^' ffi«»t5 afa»T ftff:^ •"^Cd.?^jno8.g»i eilt -set ttt^atalq 

avl^^stistal &m blm J&»a«I«ft* »s!f *«ex t" ■: -■■-!•-.!« v«tH t« :r^»-r* Tlc aols 

tliir^iirtlri ^^ tatfeo-Js o:^ A^^^e^^ »d iteXsH l-titlt 6»TisylJi«i> xX«i» fl»»cl 

j|<^i*tJft :?^-xyo« #!!•■. , • ■fs.Bl«rJB#d •*!# otf" »fao<r 9lAf b9Vntm9n 

ai*a-T€-, ,tmflip X,teBi tto (W-eX ^xe nerf? - «1 i't^fwo^*- 



4 

paragraph! of the answer vere etriclten. On November 26, 1940 
defendants filed an amended answer, stating that they were informed 
that the premises were not worth in excess of 15,500; that the rental 
▼alue was not more than kSb a month; that Helen was acting in good 
faith and taking o&re of the premises under the deed and declaration 
of trust; that she was the lawful owner of the premises; that the 
deed was delivered to her during the lifetime of her mother; that 
for many xears prior to the death of their parents their father con* 
trihuted to the support of plaintiff; that Helen also contributed to 
the support of plaintiff; that the parents regarded plaintiff as a 
spendthrift and incapable of ik handling her own financial affairs; 
that the relations between the sisters became strained; that they 
were unable to live amicably in the family home; that as a solution 
the parents oonceived the plan of deeding the property to Helen and 
having her execute a declaration of trust to protect the one^half 
interest of Helen; that in furtherance of this plan the deed and 
declaration of trust were made and delivered; that on or about October 
1, 1055 she (Helen) as trustee and lessor entered into a lease with 
Viotoz^a C, Nelson, whereunder the lessee "was given a conmossion 
of five months* rent at ^25 p month for doing her own cleaning^ 
renovating and decorating of said 14 room bouse. Further, said lessee 
agreed to pay a monthly z^ntal of l25 per month and to do or cause to 
be done such repair work on said premises at was reasonably required 
to keep the same in good, habitable condition". Defendants answered 
further that the lease was thereafter renewed from year to year and 
that the Nelsons were then oecv^ying the premises under the lease} 
thet H, A, Nelson, one of the defendants, is a skilled oaz*penter; that 
since the making of the lease he has repaired the steps, window panes, 
window cords, windows, cleaned the fire place flues, scraped the floors, 
cleaned the basement, kept the yard in good condition and did other 
work on the premises, such ifttTice being of an average value of 110 



la^m'i &£:: • , .'■* JAii^ 

I'M* ©il,? igfifii •tso ^fli^a^ itfi« d^liit 

;3seii8f: ottwo l0tw*I 9(fcr »5v »iJa tailJ jJawnit lo 

;'r«>il*€rtB nafi to said-etlX »riJ ^ni-awft ta/i a* feft«i«vll«i> saw &••& 

«fitv?> 'sfcdJsi -sierf^r a^xieiac ii»«l:t te iJJfl«j& »i^? ©J lol'in at^et 1H«« tAI 

,:i»fflfi<?«X«> ffwo T^d ^lob 'sot iS^oep ^9 SSl *» ^*ii' *.<. Jiioe 9Tit to 

?••??!.• :."ji f:-,tv: ^-^'-ds- : . yoil iBoo^ j^X feX.i5« to ^fll:*.str!©©©fj &fia 8Ai/«Toa»*i 

£ i o^ i>flU5 d;^now n&^ 6S-I to X^ifiien xldtnow « x^*^ cJ fc9*^S« 

ftr'Uwfjst ^Xcfflfl©8«©^ 8©v 8fl 8»«laf«icf 6X«i «o Jifuow tlaq9i tiava •nouB td 

t»woae «^iie6as^»<l ."noIJJLfewoe «Xd«^ic(!?rt ,^Po^ al «««b ^^ q»ea( o* 

is;Ai i-iBin^r-^.':^ ^-^UtM » 9l ^Btna^uet^b »ii* to rno ^eaXa^^ »• ,H taAi 



5 

a month; that Victoria C, Helton was compelled to bring the forcible 
detainer action because &eorgiana, niio was residing in the premises 
up to October, 1935, sought to drive the lessees therefrom; that 
after the making of the lease Georgiana "on several occasions" 
ordered the lessees to vacate the premises and on one occasion 
physieallj attacked the lessees; and that all of this made it necessary 
for Victoria C« Nelson to institute the forcible detainer actiono 
Defendants answered fuz*ther that it apoears from the affidavit recorded 
tj Georgiana on March 1, 1935 that Georgiana claimed as early as 
February 25, 1935 that the warranty deed sought to be set aside was 
not delivered during the lifetime of their mother; that the instant 
complaint was not filed until July 31, 1940 more than five years there* 
after} that in the meantime Helen, relying upon the validity of the 
deed, advanced out of her own funds various sums of money in payment 
of expenses and taxes on the property, and that by reason of the delay 
plaintiff has been guilty of gross laches and was barred from any 
relief in equity and that defendants were not guilty of any conspiracy 
or fraud* On December E, 1940 Georgiana filed a replication to the 
amended answer. She asserted that Helen had no authority to make the 
lease with the Nelsons; that the stu of >25 per month for the rental 
of the premises was inadequate, denied that the Nelsons made any 
repairs upon the premises, except such as would be reauired of any 
tenant, and denied that she ohysioally attacked the Nelsons. She 
alleged that Helen, sinoe prior to November 15, 1935, kept and reserved 
for her own personal use two rooms of the premises and kept her 
permanent abode and residenoe in the Dremisee; denied that Helen 
contributed any amount toward the maintenance and support of plaintiff 
and denied that Helen Expended any moneys from her own funds in 
payment of taxes or any other exoenses on the property* 

On April 15, 1942 Helen presented a petition alleging that 
for some months prior to October 1, 1941 the dwelling was unoccupied, 
except for certain possessions belonging to Georgiana being stored 
therein; that during the time Georgiana lived in the premises she 



9 

,rf /Ti:^ 'T-sitiM^aft €iJ'/iit»<tet ftiS^" Bttsitinfii ot a«S6B.r«Jf .^ «Jtnc;^©XV tot 
«';,■-; -;ij «'7;.:v:-v^ :.5f{# i»*s©« 0*«i ,18 i,£.«r1» Il^fio &«Xit $ea msv tKl^£qmo9 

^s.:...... sn^kr^n*,^ -^-S*! ,r%»dP«»«»#0 no ♦Ma-rt n« 

:.:. . ^-:.^-;; :.„.., .-, '.l :. .-; ., :■;, ■ : .ui ;>ao«I^ »ilJ -tftfiw' •■B»X 
^:,: •.«tin:a<»T «^cf aire ^.u.?sti«9*'jq «f!# fiKrciy ««rl«tt«»*» 

hi-vt: ., J ,^: ^ ^ .■,,'d!0»V©» 0^ IC-ilq »»«1« ,0«X«K *«1* A»g«IXs? 

• '* ■ ■ ,, V -^ ...... "■■■ -'t-'* 9Bn»m>$nl--^ ■-"'■+ ^^^-'v*-* t,itfeiB.f x*"* bvtv^itta^c 

.,. : ;':;,^«»-"'' '•- ■■!«-^'> «V'«>ac« \,,;^, *.i-i:.j . V ^:fe ««Xotf .^/vJi!* k^iitnb ha& 

< .. fei{3«»ef'" aiA.. ift- - ^ '•''■'■ ^I •iMo'^ ■-'''' •-* iclirr iwttrrc* •»C8 tot 



oociipled certain ro3«8 on the third floor; that included with these 
rooma wex*e a bath room and a cloaet; that in the Fall of 1941 she 
packed all of her persons! belongings contained in the rooae and placed 
thea in certain drawers in a closet located on the third floor and 
looked the sane; that in these rooBS were a bed, chairs, other furniture 
and a quantity of artist's materials belonging to her; that on Januax^ 
24, 1941 Georgiana filed her petition requesting that she be permitted 
to occupy a portion of the dwelling house and to plaoe therein her 
personal belongings; that this petition was danied| that despite such 
denial c^eorgiana on Noveaber 1, 1941 moTed into the premises and took; 
up her abode therein; that subsequently Georgians, by force or through 
the use of a key, secured aooess and entry to the premises wherein 
Helen kad stored her personal belongings and removed therefrom these 
personal belongings and f umi shingp and converted them to her own use; 
that Gk»orgiana leased the roons to certain roomers or boarders who 
brought their own belongings and damaged and destroyed the possessions of 
Helen; that the entry into the oremises by G«orgiana and these third 
parties constituted a contempt of court; that she (Helen) asked that a 
rule be entered against Georgiana to show oausy why she should not be 
punished for contempt, that an order be entered that Georgiana vacate 
the premises and cause to be removed therefz^m all persons to whom 
she gave possession,, and thst she surrender all furnishings, furniture 
and property of defendant (Helen) stored on the third floor which she 
had removed* On April 25, 1942 Georgiana answered this petition, 
admitting that on January 24, 1941 she made appliostion for leave to 
occupy the dwelling house; that no action was taken on the application; 
that on July 1, 1941 Helen handed to her (Georgiana) the key to the 
premises; that thereupon she (Georgiana) went upon the premises and 
made certain repairs which were necessary for the protection of the 
building and to prevent deterioration; that she also expended money 
for the purchase of coke; that she paid or obligated herself to pay 



a 



J ( ^■i -^'x'^-: ^(5:r.j'< i:-i-ri;J' iil Serfs' j^tasa edJ &»3CooI 

^i««ni?.i.^ : ^ni|^©X«»rf 8X«ii'^«;^j»tB. ti*tiitStB to t*-t~Jn«wp e Aiu 

isd al^t^^ »9i5X u<«i ^HlXXrwl) •)*? to «oi*"ioq « ^q«ooo o* 

jiooiJ &R& afigiffls*iq eii;f ccTiil £e\roft X^ex »X -rscfaevoil no «aai^c»0 iMJM^b 

*«*r30jv ,Atiisi-4jTte«i> ^!$£lir lye^mtftt «d tsMo a» t«ti? ^4q^tn9Q tot bediiiiGBq. 
»o«lw oJ s»ioaT»G: XXfi fiso^tsifJiiJ &evrm*t ©li oJ »«#«» 6o« ftaajUn^q «ii* 

exia .doiitw looXt iniriS' ©rf;^ no fc«^o^e (aeXefi) Jruifeeslei) to t^eqo^q biiM 

^iiol^li^f:, aliiS ib^t^vma^ afl.<sl;gi«>^) §*€X k8S X1*i<jA aO .AavoasT AjM 

I ao-t3^fi»iXq<^ »iij»« etiM X>QX ji'S xt*««?l» no i&^ ^Ittimb* 

9fi? ci v.»i. ©xlJ (*'4ij&Xs'Jt©&S) 'swi 0? fi«l!xft«il iiaXeM X*«X »X \Xtf^ ao J«xW 
Jb«,<5 a©«i«;©tc Gila G':ov tn9v (i4nfi4l?jt©»0) a^a tieqU9VJiJ i^>df {ftsaiiMiq 
«i'i^ lo ttpi^©»?o^q axv ■'.'»<:. a ec'an viev; rioMvr onisqa^ itldlYaa •baa 

Xinq Ot iltt&n&d l>®*©%XXcfo ^o Blisc; fAla t»A:i Jtioo to •e^ofdltfq fri* %9\ 



7 ^5* 

$692.32; that she used a key to enter the premises, which was the key 
fumiehed to her by Helan; that she did not remove from the prenlses 
any of the personal belongings and fiimishings therein^ nor did she 
conTert the saae to her own use; that since Febmary 1^ 1942 she has 
been using so much of the furniture contained in the premises as was 
conrenient; that she did not dispose of, dasiAge or destx>oy any of the 
possessions of Helen» She denied that she broke into any of the roomB 
and stiites that she used a key for the purpose of entering the various 
rooms. She denied that she damaged, destroyed or disposed of any of 
the personal belongings of her sister. In her answer she quoted a 
letter dated February 21, 1942, which she wrote to Helen. In this 
letter she told about making the reoairs and about moving into the house 
OB February 1, 1942. She concluded by stating that "a number of people 
are interested in renting roone and I am anxious to get them ready as 
quickly as possible **« She asked Helen's cooperation to the extent of 
reimbursing her for one-half the cost of heating. The answer does not 
mention that any reply was received from Helen. On August 14, 1942 
(}eorgiana filed an amendment to her answer, stating that for about five 
years prior to July 1, 1941 her sister and certain tenants occupied the 
premises; that these tenants vacated on or about July 1, 1941; that 
after they vacated an agreement was made between the littomeys representing 
each of the sisters that G«orgiana be permitted to go into possession 
of the premises and that she rent the same to the best advantage; that 
Helen delivered the key to the premises to her (Oeorgiana); that she then 
made the repairs heiretofore mentioned, r>laoing the premises in a habitable 
condition; that she gave a lease to a tenant at a rentail of |40 a month, 
pursuant to the agreement between the attorneys; that she (Oeorgiana) 
brought her furniture to the premises and now resides there; that she 
was employed during the day at a small remuneration as a pantry woman; 
that her sister is a school t#acher, lives at the Del Prado Hotel and 
has a lucrative income; and that she reeiuested that the statue be not 
disturbed* On August 14, 1942 the following order was enteredS 



b^m »il» 3" all* l5Z,^9G$ 

. y» "^ti^^aa* ^ <5>«o<«rsi» ;?«« felfc tiatg SmjAS (tiMlavtnea 

sj .ai'st.Jis*. ■ ■ -ri' :-•' ■•;..■'' x«.&' & ^/^^tJ *iiB #4feri» ••^fptfa *a* 

®vll: ;JBod-' ifti^l'.a*^ t«ts*n!*ii*j T«irf c. u*«ss fas ^»Xlt srsials****® 

^:j |^«>irri)tf?e'? R;?it«»fT*'* f».?.e.t-"«;' ?.^£{ Xt^ex ,r-t'?^»^ <>* •rci'rQ •'»«»X 

.( ■j'u^ifpiv :Tr»5on ■ 'ot;X o lAii 



s 

"On motion of attorney for Helen Gilbert, this oause 
eoalng on for further hearing upon the petition of Helen Gilbert 
filed herein on the fifteenth day of i^pll, 1942, and the answer of 
&eorglana Hees thereto, all parties being present by their respective 
counsel, and the court having heard evidence upon the former hearing 
herein and having heard the argunents of counsel, finds that a prior 
lease of said preffllses at 5234 Woodlaim Avenue, Chicago, Illinois, 
exists between Creorglana Hess either as agent or individually and 
one J, H, Kohlenberger, the exact teras of which are not tonown to the 
court. The court does further find said lease was laade without 
power or authority by said Georglana Hess and the same is not for 
the best Interest of those in said premises and is unfair and 
Inequitable. Wherefore the court does declare said lease null and 
void and does hereby order said J, R, Kohlenberger and all persons 
holding by or under hln to vacate and give up possession of said 
prealses on and by the first day of September, 1942 and that a writ 
of assistance issue In connection. hei*ewlth,* 

Plaintiff appeals from this order. 

Turning to the transcript of the proceedings before the 

chancellor, we note that the matter came on for hearing on May 12, 

1942 in connection with the petition of Helen to have Georgiana 

held in contesqpt* At that time the case in chief was pending before 

a Master in Chancery. The attorney for Helen aclmltted that in July, 

1941, after the Melsons moved, Helen sent the key to Mrs. Hess. At 

that time the premises w«r« unoccupied. Me stated that Georglana 

commenced heating the house in October, 1941, and that "my client 

didn't put her out, didn't do anything about it* Perhaps It was 

agreeable to her. Then she moved in entirely sometime in February. 

My client didn't s«y anything about the rest of the hotae; she had 

a room upstairs. My client went there about once a week with her 

drawing things - Joint occupancy. In March she moved out the stuff 

of my client and appropriated these things to her own use* We say 

that is not right". The attorney for Helen contended that Oeorglana 

should not interfere with Helen's studio on the third floor, and 

stated further that Oeorglana Is receiving an :^1800 annuity from her 

father's estate. Helen said: "The point is not so much her going 

up to the thlz*d floor, I kept my own room, like my room has been. 

The duplicate key was inside the room in the closet door. That 

locked one closet; the rest of the doors were open, I didn't like 

her going into my studio, I do object to have anybody enter a locked 

room, take my blankets out, my personal property, and dump my private 

things in a drawer, and Just simply take them out, the things that 



s 

no B^ilffce 



©d-3 



* ' ■!* ^jt/iirYit-s of> J'aMi) ,jifo t«^ ir»c ;f'nl)i:t 

'lod dl^Iiiv'- ;3iLi9a-i« e seao -^uq4» mi»si'3 iti»^f $u^llfb 'vM »9*tlsii^is^ me«^ « 

oil x^tisaaa OOQl^ a& s^jtvlso^i al anfilB^©»0 ^«ilJ iftd^tut -5«J»t» 
'^aio;g i©ri fteuiB ©« ion ai *«ioq exiT" Ji)i.sf8 n«>X»H ««ifa*»8 a*i»dt«t 

tfsjiT *iooli :feaoIo ©ri* nl »ck« ^xfa- sfclsol bjbv i»a( ocTjaelXqitA ©ilT 
i»jitZ 3*fihlb I ,n9<?o 019W Bioofe «xl? to S«®« Mil tjr»ao/o ftjoo »«uI^X 



9 

arc eiround, Z do feel I ha^re a easa h«re, entering a looked room* 

Thif one rooB and the closet, that is the issue* It isn't the house* 

It is ay private property, to enter it with a Jcey," Helen stated that 

she had rented to a "very desirable party. They are working; they 

are taking care of the property. They are paying |40 s month for two 

rooms on the third floor and the use of the dining room and kitchen, 

whieh is oonelderably more than my sister rented the house for. These 

people have no furniture. My furniture is still in storage, I took 

the first payment, making the house fit to live in, I had to pay rent 

for six years. In order to get in there, I had to do some plastering, 

I had to fix some windows. I had to have the furnace cleaned** • As 

to the charge made by Helen, plaintiff stated: "I unlocked her door, 

I have a key to every room in that house. Her x*oom was looked and 

the closet to the room, • that used to be the maid's, - was looked, so 

I unlocked the door. In there were these so-called art materials. There 

were two bushel baskets of glass containers, ''liatever was thepe, I 

moved into the cedar closet, so they would be accessible to my sister. 

The cedar closet is about the site of the *- I left that note telling 

my sister where they were, I arranged them as neatly as I could. There 

was a golden oak board th«t had some discarded clothing. There was 

nothing of any value. Her room was the south room. The middle south 

room was father's room. It had some furniture. Nothing was said about 

that. In the big window there was some drawers; those were full. In 

order to make room for those things, I took some bedding from the 

drawer in my sister's closet, because they were big things, I thought 

it would be sinrpler te put all the little things in her room. Her 

bedding is on the second floor, She had access to it. She can remove 

or she can rearrange it, I needed that closet to use, I needed the 

closet drawers in the other rooms". The attorney for Helen stated: 

half 
''They are either Joint tenants or tenants in oommonj she ie a/tenant**. 

Referring to the use of part of the third floor called the "art studie", 

Oeorgiana said: "When summer time comes if she '•rants to use it, I can 

move these people down to the second floor« There are only two baths. 



r.' 



■ , ■ ■ -•;■? &>«- SIT'- ;?iri'r 






t- 






.^fiiis^a^i. ■•— :. , -j,^ xit lol 

oe ,i&0^oei »e« •• |a*&l*jK ®d.« " rf-f ■» ,'!-.• o-? ?i!W ol ;fefioXo sd3' 

s't^xi:? ,£>Xhv'?» X aa •^X^a«a ejs ^^^ &«^itj&«iim I »»*f@w x«d* ©iwlw <t«:fBl« Y« 

j-ftjjf.!crf, . iitiiif ^id' **t«T.? ^fc>jW 's>f-.up.9»4 |,J«':*oXo »*T»ial.'5 igffl ^i i9ytsih 

9^# &f>6««in I ««>««} f^i ^e«oX9 ixxi^f &«{>»».< , ' ' 9frm»*t''iJMn mm Mia 10 

rfe8*«tfa 9»lui*i next ^»csi«*;re «ii^' ♦"eanoi issWo eii? /<i n»««* 9'taoX» 

^ fe*lir(f> tcoXt t^JtcLi «xt^ to #1A<? to «»i; sfi^ o;t ;^J*ri©l»H 



10 

The second floor bath leaks a little bit. I don't want that used 
until it is fixed. I am living on the second floor. That gives 
then a bath to theaselves. Uj sister coaes onoe in two or three months. 
She can cone now Just as well ae she ever did. Hothing has been 
touol^ed in her rooa except moving the bedding. I am letting the 
daughter of these other people sleep there. I asked my sister to 
eooper&te to the extent of advancing some money. I Just moved two 
pieces of furniture. Bhe Just does not like it because I took two 
pieces of furniture out of the room". The attorney for Helen stated: 
"We can*t enter that business proposition of rehabilitating that place". 
The chancellor eaid "I would suggest to remove these tenants. That 
is the bone of contention." Georgiana answered: "They have a lease 
until October". The chancellor aid: "I will hold now the lease is 
invalid". Mrs. Hess responded: "I was given permission to rent to 
then," and the chancellor asked^ "By whoa?" Qeorgiana answered "By 
ay sister and her attorney. I was given the permission of renting my 
flat." The chancellor then stated: "I think thst will be the only 
order I will issue, is to order them out with a writ of assistance." 
The only comment of Helen was: *Sh« has six bedx^oms on the second 
floor. Iliey aren't any of them fit to use." The chancellor remarked 
that the only subject matter before the court was the "partition suit." 
The attorney for Helen stated: "That partition suit is an off-shoot 
of a cross-count in the c9oss-coaplaint«" The record brought to this 
court does not show a cross-complaint, a cross-count or any allegations 
or prayer for partition. When the chancellor indicated that he would 
issue a writ of assistance against the tenants, Helen said: "It was 
moving the bed and the bureau. I don't mind if she keeps people in 
the house. She has six bedrooas on the second floor. There are five 
that can be used". The clumcellor said: "I haven't any disposition 
to chase these people out if you can get along". (Jeorgiana stated: "I 
aa lucky to get anybody to live in the house." The court then 
suggested that she get the bath rooa on the second floor repaired. The 
attorney for Helen responded: "It is understood we will not pay one 



ox 
.... . ^L Ilitut 

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^-nj&g »ii ;rfltii;f fcoifiimlftlii ^r -^ -"•-'■• - ■■ •* •----' .^ci^iJ-xaq TOt <xat«^q to 

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_.. .-,, <v. .. ,_ .4._, ; -,^,.-. ^jj^ jjj^ 5^ ^j aal-ro« 

r> j.,uTt. •. .'m- ( -tn';-, iXa a^Ari adS ,aaarod •At 

.... r'Tt.atr: -■ ' - ■ .■'--',' '^ aao trvx ^•f *«r 'M!?cr"i aaadt •a«4o 0^ 

•^^.'■o;:; -•■ , My^-q «c ' '^ "jQ^'^ilA *©S Ot XtiQI/I m» 



11 

cent to have that building rehabilitated. They oan*t ooopel us to". 
Helen said she vould 11)eb to hay her personal room and her studio. . 
She stated further: *l would like to have whet was In them restored. 
She may use temporarily the other rooms. 1 vrantaeeess to the bath. 
If she will put back the things, I will make a favor on the locked ones. 
She may put the things from the oedar closet into my room. I have 
decorated it myself". At this hearing the parties did not arrive at 
any solution of their difficulties and the chancellor did not enter 
any formal order. At the oonolusion of the hearing he eaid, addressing 
^eorgianaS "ICou restore her studio and these other rooms and you 
stay on the second floor" « The hearing was resumed on August 14, 1942. 
The attorney for Georgiana reminded the chancellor of the discussion 
at the previous hearing and said} "lotir order was you eaid to throw 
out those tenants and allow these women to go along on the pleadings 
of Mrs. Hess. We eaid we would let the tenants stay. I knew thrt 
court was going to adjourn and that they would probably have to come 
in again, that they would not live up to their agreement and we would 
be in the soup. They have not moved an inch and have Just given us 
conversation and I can*t get them to move unless I come in here. X 
want your honor to read that transcript". The ohancellor stated that 
he had directed that the tenant move from the third to the second floor 
and that he was going to order the tenant out of the house. The 
attorney for &eorgiana stated that the previous attorneys for the parties 
who had made the aipreement heretofore alluded to were in the courtroom 
and ready to testify about the agreement. The chancellor stated that 
he did not care to hear from them, and added! "I am going to get 
that tenant out of there." He then inouired as to the nwaie of the tenant 
and this information was given by Creorgiana* She asked as to whether 
the chancellor wished the tenant moved out of the third floor. The 
latter answered that he wished the tenant moved out of the building 
entirely, Georgiana then stated: "They have a lease until October 1st," 



II 

,;..r-„ ce.'T'i-'.irrM^- - I ^nm^ot neiS.tc ©d* t-fi:**sr'so<pt«^ ••» tan wB 

... . ?-cl« '!*&«© 9^t tm^t »i^fiisi$ %Af 9o(s xam mtilt 

•>no tii^<-=r','j -s^tii^ro eaadi? &<»« oiftsr^'? 194 »^©^%»*! »ot* t«flfll$^o»i.' 

.'S^ei ,, „ .Jc-,..^.: .:3 fj^fwatt-s saw •^tiiiisaii sdf ^''tcej:^ .6oi»s«rti •JS(# ao t«?8 

^'^alik^9lt: BAi nc j^aolfii ui^ cif fl«»f««f »««riltf w«}XIii :&ii» d^fiUMiM ••oii;r Jxnj 

*««i* W'ci;... ,v-^^- ..:.!,:■;-- ^jrf^ Jfil BIjwsw ©If &jt,«9 eW .a8»H .•ill lo 

0jmo 0* €;y^ v.M«%<Jo*i0 Maow •^©fiJ ;f»^.«r Sits 43WC»ct&A of i^tilo^ 8«w ;^-£<ioe 

AIJU0.V Ski* tm, tnm^vtm 'il*ii^ oS" qu ,«irjtX aon' .fclwow t«^^^ ^ftJ^ »«i«»«ik «i 

9» ntvi^ tmut ov«0 &m. Ami hm fisYMi ^&» «vjB^ "C®^^^ ««M7e« sfi^ ai «4 

niog ms ^" !--r>.?>i»j3 .&fl« »««iitf -'■''■' '^'-ft*! ©* »^e«> ton AiA ft^ 



12 

The chancellor said: *1 hare cancelled the lease. They have until 
the first of September to get out". The court then entered the order 
appealed from. It is interesting to note that the order recognized 
that there ie a lease between Georgiana and J. H, Kohlenberger, "the 
exact terns of which are not itnown to the court." The court declared 
the lease null and void and ordered that "J. R. Kohlenberger and all 
persons holding by or under him to vacate and give up possession of 
the premises on or before September 1, 1942, and that a wtit of 
assistance issue." 

The case in chief is pending. Should plaintiff prevail in 
her contention that there was no delivery of her mother's deed, the 
sisters will be tenants in common under the will of their mother* 
%ould Helen's position be sustained, then she (Helen) remains the 
owner of the legal title as trustee for herself and her sister under 
the conditions stated in the declaration of tznist. In either event 
each sister will in equity have an undivided one*half interest. It 
is true that should Helen prevail she will by virtue of being the 
trustee have certain duties to perform in connection with carrying out 
the trust in accordance with the declaration of trust. It appears 
that the building is old and has not been maintained. It Is in need 
of repair. The t«me« have not been paid for several years » The 
complaint filed by Oerogiana, among other things, assailed the action 
of Blelen in renting to the Nelsons. Oeorgiana vacated the premises on 
November IS, 1935, following the Judgment rendered against her in the 
forcible detainer suit. The complaint stated that the Nelsons and 
Helen began occupancy of the premises on NoveiyDer 15, 1935. The 
Nelsons Vacated the premises about July 1, 1941, Georgiana then took 
possession of the premises and made certain repairs. She did not 
reside there, however, until February 1, 1942, The petition filed by 
Helen on April 15, 1942 complained that Georgiana "by force or through 
the use of a key, the existence of ^ich was unknown to the petitioner", 
secured access to the premises. The relief sought in this petition 



._ ,. is^ocr^eXiic 1 . ,. ;.aJl5r l>«t»|v^c -... ... bam llfm sisa«X ftiltf 

'io aeiaefiaaoc <!pi^ »'?ia 6fl^ «:?a-»^$v off mid *j»?>«4> "se x*f "i^nthl&A ftno^iv^ 

'"* 4»M^ a i f. r.n ?•• r? a ? fC n Q 

tX«idi«®«c lr»l^lvl^(«0 Ma KVssrf T*ijfp« flX XXlw 's«i#sla Aoa^ 
..... ,,....,.... .. e^;r^lv x^ II tm ffsiti Ii£VBt.q ft^XaS feXiioiS» r^.i© •amJ ei 

?v^. . -; ^ : ^; .feefilBtffll'?© iM«<f ;r®fl »'«fi fcasj JbXa ai jjislftXljnl tiltf fjsti 

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i *3f««l d-aiii.gi-^ ©ettofemin jr«a«%ft»t ^m ^tshftllot ,eS9X ,6X 'x$¥ji«»70' 
. . .; 9:aoaX«H ariJ *,gj^,t £>»<j-3,ia :i-nXaX€P»too -■""" ,-'••" ■--"»-^-'- ^^Xtfioic 
ailf ,d&ex ^t'^X '««f?rfi©ir©*S n^& B^9imtnti s--.;.. re- ^^^.m •.-nsnc sif-.^scf nm£9^ 

-■'■"■-'' ^■■'~ ..•-■;■;.■ • -i «A.^j--3»;'i -itvjrjtB .fe«j§, B^aiffo'iGf 9Hi "ia jnciaataaoq 

i^ottie ■ ----« -1" su&'.ls^Cftfi J:Si!;J MaiaX^cc r '■■^ ' ' , ^ '••.,a ao craXeH 

^'''aenoJi'i./'M 'i-rmnKnu baw floid.- to aansJn^".' n; , aau aiU 



13 

was that a rule be entered reaulring Georglana to show cause why she 
should not toe punished for conteopt on account of entering the 
premlsee, and that an order be entered reoui?rlng Georgiana to turn 
oTer possession of the premises to Helen, Froa the excerpts quoted 
froB the record It apnears that on the hearing of the rule to show 
cause, Helen had no serious objection to the occupancy of the preaiees 
by her sister or by the tenants who had been given a lease by her 
sister, Helen objected to being charged for any part of the repairs 
ordered by her sister and she was yerj much offended by the fact that 
her personal belongings on the third floor ware disturbed by her sister 
or the tenants* The chancellor endeavoring to compose the differences 
between the sisters, verbally ordered that the third floor be left 
entirely for Helen and that neither the tenant nor Georgiana enter 
that part of the house. Georgian* stated that It was necessary to use 
the bath room on the third floor, Helen did not ask the chancellor 
to evict the tenant. The eviction of the tenant was papa proposed 
by the chancellor, Mfhen he announced that he would enter an order 
directing the issuance of a writ of assistance to evict the tenant, he 
was informed that the tenant had a lease. Nevertheless, the order 
against the tenant was entered. It does not appear that any order was 
entered on the motion for the rule to show cause irtiy Georgiana should 
not be held In contempt of court, nor was there any order entered on 
Helen*! request to have Georgiana give oosseseion of the premises to 
her. The order eventually was directed against the tenant, who was not 
a party suid who was mot served with procese or notice. The order is 
void. The Sheriff would not be warranted In evicting the tenant under 
that order* Clearly, the tenant Is entitled to his day in court. In 
her brief Helen argues that "the so-called tenant, Joseph Kohlenberger, 
taking under respondent, Georgiana Hess, a party to the action, and 
talcing pendente lite, is bound by all orders in the cause respecting 
the real property in suit". We ax^ unable to comprehend how the 
dootrine of pendente lite affecte this case. The tenant does not question 



o 



iNisfc; .i;s.Cc- :.j asiiias'::... M^ to isolaaesBOi? nr?o 

cfdfi# eft**,! ^3rli' .J ft*»£'fl9Ho £io»Bi ■^rrgjr fijsw «i^a 6ttj& •*»}>? la tsrf tc^ fceieMo 

istfas ^^-ieie'io^^v- loa Sii^nr-.? ^ii- -is^d^ian 'irjl^ Baa aeXfill flcl tX^iiJn? 

^oXl^&ftMJSie •ttt 3te.s ifpn Bift ^raXeH ^-tsioXt £wirf;t ari:f m them Atjui titftf 

•ssr.fcio fl« 'i^jf'ffl© i-)X«ow -Hid 4&ii^ u^tHmoim^. i'h iieii*- .tcXIooiiArio fiil^ ^f- 

feXaorfa !jiiai®Tto©^ "?rf'' rot flol^ojn *ii^ ao b9«t«#(i9 

^&io T^fljs ©isJiJ , ? iTcTon^fioe fll fiXvii fttf Jon 

^i»®*iq ndt to fiiolaa»a«ocr svi^} iiflaig^©®^* «varf c:f Jaewo©^ 8*neX»H 

t .';fls;t ed* *■• '>©:?o#*ii • : rx»ti?n»v» i«l>ae oriT ,«j«ri 

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'i;:'r \jrji;toiv-' JfieitAw f>(i Joit 5X»tw t'tjNuiK erft ♦BIot 

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fid* '-fcn bttftridcpcis o# «Xcf&«Jtf »i« . ' ' ' t^'Xf qciq l»»«i »xf-* 



14 

the rights of the sisters as between themselves. In the hearings all 
thst Helen asked vas that the tenant and Georgiana do not disturb her 
(Helen) in the part of the premises that she ocaasionally occupied on 
the third floor. Before the right of the tenant could be adjudicated it 
would be necessary to make hin a party and serve him with process, or 
that he appear in the cess, 

Helen further contends that tieorgiana cannot urge on this 
appeal the matters affecting Joseph Kohlenberger, since he is not a 
party to the appeal. There was no motion to dismiss the appeal, which 
would be the aporoprlate procedure. We are of the ooinion that Georgiana 
does have an interest in the subject matter of the appeal. Regardless 
of how the ease in chief is decided she will be entitled to one-half 
interest in the premises. It cannot be doubted that she has an interest 
in having the oremises rented so that the rent derived will inure to 
the benefit of both sisters. From the transcript we notice that there 
was an indication that the Kohlenberger lease would expire on 
September 30, 194)?, The record does not show whether Kohlenberger 
vacated the premises at the erpiration of the lease, or whether some 
arrangement was made whereby he remained in possession. It is 
unfortunate that these sisters are quarreling. Their disoute does not 
appear to lie very serious. The order that was finally entered did 
not dispose of their dispute. It left Oeorgiana in possession of the 
premises, contrary to the prayer of Helenas petition, and it ordered 
the eviction of a tenant who was not a party, who was not served with 
process and who did not have his day in court. 

For the reasons stated, the order of the Superior Court of 
Cook County entered August 14, 1942 is reversed* 

ORDER R£.vaR8ED, 
HEBEL AND KILET, JJ, CONOOTU 



I 



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3*^0 I.A, 135 



APPSAL FROM 



/I 



CIRCUIT q/du^ 

COOK 




;t*3i'-^'^r>':* 



42656 

DARLINS MOSS, Individually and at 
Adainistratrlx of the Estate of 
OLIV£ E. BALCH, deceased, 

Plldatlff - Appellee, 

JACK H. BALCH, et al., Defendiite, " 

JACK H, IfALCH, DALTOH 4 BALCH, INC., 
D, k B. MANUFACTUIUEITG CO., CARL L, 
PETERSON and ^^^^ BROWH, 

^.y^^'Def endante - Aooellante, 



MR» PRESIDING JUSTICE BURKE DELIVERED THE OPINION oKS^jMid^^f. 

On August 18, 1919 a oertiflcation of Incorporation wai 
is sued by the S^ate of Illinoia to B\iiok Exchange Inc. On August 22, 
1921 the name vae changed to Dalton & Balch, Inc« The place of 
bueinees of this oorporntion was located at 2333 South Mlohlgan 
Avenue, Ch£«ago* The corporation issued 800 shares of stock of the 
par value of 100 a share, Michael E, Dalton and Jack H, B^loh 
founded the business, organized the coz^oration and owned the stock. 
Michael E, Dalton owned 398-3/4 shares of stock. Jack H* Balch owned 
the saffle number and 2|^ shares stood of record in the name of Carl L. 
Peterson. These 2\ shares were actually owned equally by Michael 
E, Dalton and Jack H, Balch and were held by Peterson for their use 
and benefit. On Noveabcr 22, 1926 Michael E. Dalton died testate. 
He bequeathed Olive £. Balch, the wife of Jack Balch, all of his 
398-3/4 shares of capital si«ok. Olive E. Balch thereupon became the 
owner of 398-3/4 shares. Shortly thereafter Jack Balch acquired 
from Olive Balch 2-3/4 shares of capital stock and from Carl L, 
Peterson 2i shares then outstanding in his name, in accordance with 
a written agreement dated August 24, 1922 between Jack Balch and 

Michael Dalton, As a consequence Jack Baloh became the majority 
stockholder of the corporation as the owner of 404 shares, and Olive 
Balch, as the owner of the balance of 396 shares, became the minority 
stockholder. From 1926 to March 1, 1937 Olive E. Balch, Jack H, 






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van »i<* ai hnoo»i to boeJt teiiuit |S Boa •xMfMM »nBii •ri;? 

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2 

Baioh axkd Carl L. Peterson were directors. On April Z, 1937 Olive 
Baloh died. On May 1, 1939 Dal ton & Baloh, Inc. vas dissolved by a 
decree of the Superior Court of Cook County, On August 10, 1936 a 
certificate of incorpor tlon was laaued to the D, St B, Manufacturing 
Co, This corporation did not actually coamenoe operation of business 
until March 1, 1937. On that date all of the assets of Dal ton 9t 
Baleh, Inc., vera transferred to the D, & B, Manufacturing Co., m& 
the business previously conducted by Dalton & Balch, Inc. was 
thereafter operated 8uid conducted by the D, & B, Manufacturing Co. 
vlth the saae assets and aost liabilities and the same cuBtoBerf»\. 
Of the 50 shares of stock authorized to be issued by the D, & B, 
Manufacturing Co., Jack Balch contends that 25*3A6 were issued in 
the naae of M, J, Brovn and 24-3/16 In the name of Saauel Green, 
The p, 4 B, Manufacturing Co., was dissolved on or about Deoeaber 15, 
1942, Jack Balch claims that he purchased the stock and took over 
and continued the bueiness of the D, & B, Manufacturing Co. When 
Olive E. Balch died intestate on April 3, 1937 she left as her sole 
heirs and next of kin her husband Jack Baloh and her daughter Darllne 
Moss. Darllne was not the daughter of Jaok Balch* Darllne Moss was 
appointed administratrix of the estate of Olive £, Balch, deceased, 
by the Probate Court of Cook County on May 8, 1941, On Jmuary 6, 
1943 Darllne Mqss filed a verified complaint in chancery, individually 
and as adnlnlstratrlx of the estate of Olive £, Balch, deceased, in 
the Circuit Court of Cook County against Jaok H, Balch, Dalton & Baloh, 
Inc., D, ft B, Manufacturing G©,, Carl L, Peterson and M, J. Brown. 
In hercosiplalnt Darllne alleged that her aether and Jack Balch owned 
in equal shares the capital stock of Dalton * Balch, Inc.; that they 
assigned 2^ shares to Carl L, Peterson as qualifying shares; that 
Balch was president and treasurer; that Peterson was secretary and 
bookkeeper; the t both were directors; tht t Mrs. Baloh was not versed 
in business affairs; that she took no active part In the management 



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h 11 



3 

or operation of the corporation; that she had full faith, trust and 
confidence In the honesty and Integrity of her hueband; that the 
ooBplete management and operation of the business was In Jack. Bgloh; 
that he, luiowlng the trust and confidence reposed in hln by his wife, 
undertook a> aplete management and control of the business; that contrary 
to the trust reposed in him and vith the connivance of Carl L« Peterson, 
Baloh entered into a scheme «id plan to cheat and defraud his wife out 
of her interest and rights in the corporation, and he, Baloh planned 
and schemed to ovn the business exclusively; that the fraudulent scheme 
was to deplete the credits, assets and good will of the business in 
order that it would appear to be of little or no value, so that by 
manipulation he could become the sole owner; that on January 1, 1927 
the comor«tion had a surolus of 1108,789.05 and was enjoying a profit- 
able business; that an appraisal was had about that time of the 
machinery by expert appraisers who found it to be worth §66,014,81; 
that Balch drew a salary of S15,000 per year; that in pursuance of the 
scheme to defraud Mrs, Balch he, Baloh, withdrew funds of large amounts 
in excess of his salary, which funds he appropriated to his own use; 
that Carl L« Peterson assisted and consented to these Improper with- 
drawals of funds; that in 1927 Balch appropriated to his own use 
$13,382*28 in excess of his salary of 415,000 for that year and in 
ezoesB of his credit balance at the beginning of that year of |4,032,80; 
tkat in 1928 he appropriated to his own use 116,536.55 in excess of 
hit salary of $15,000; that in 1929 he appropriated to his own uaa a 
further sum of ^21,773.26 in excess of his salary of $15,000; that on 
December 31, 1929 he claimed to be the owner of an undivided one-third 
interest in a second mortgage on real estate located at 54th and 
Prairie Avenue, Chicago, and of an equity in 47 bonds of the Chicago 
Traction Company; that the equities "in both of these were of little 
or no Value;** that Balch and Peterson well knew that these securities 
had little or no value; that nevertheless in furtherance of the 
conspiracy and fraud Baloh transferred the securities to the corporation 
at a total value of 117,650, which values were fictitious and fraudulent; 



c 



; •. '■:■" "■•;■ xt It^nt r. '- v:J8««osf' -•■" -' ecii0£Jt)aGO 

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it0if«Mfi^ tin ■ -ofijul wrxMJlw »4«»X»^.3 ,»4 4oXsi3' ,a*j« Ma's tea oiT swmCm 

tmo stlii &S k^^Mitq9'%qq& 94 tibial xlaidv ^'i%MSA» airi to a* •OX* nX 

iw© 9l£[ ©J Jfe©?iBJ«a<?«^Gfqjs /ioXAS VS^X nX Sjnm ;«^JUit to aX«wjrtik 

;0£».^oO«^ -^Btaal^^d 9BiS <;j» ^ocsXacf 91&a?9 aid t« a«fiew 

to ^ati&x^ &A o«i.Q^o,$Xl •&& «rwc ai4 o;f h»S »i*i(};otqciA til fiSifti «X :rcj(;r 

a ee:. cil cd" l>©*.ei*tq^'xcrqA Sit Q^£ at Ss^H ;Q0C^QIU to -fiAXaa wJd 

«c : 00,ex| tc ^t«XiSia siri t<? «a»t)xa aX diS.SVT^SI ts mv rtad^itt 

l>T:i?ijr-.£;i ? s ; rXIxiBi ajs to "jeniro ad? »af o3^ J&*«X«Xo ari *3SSX »X£ 'sadaaoaG 

£»ai^ dii-^ i» btiiA9cl e^^as X3&1 nc a1^s;^'xolB biMaaa a ai #aa*xAtai 

4^^el40 ,«4f to aljfi ' ^^X^pa m to &«« ^as^itffi ^MmwK aii^iart^; 

*- ^ aaifsr to ritf«!»tf ui" e&X^iJijpa a£!(l tfcriJt f%fljMi«oO iiol^oB-xT 

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8Jl* to ao«fiieil^^«t nX B8*X«i.'Ji»T6fl tf'SiiJ (8iiX«v on -so «X*^XX ftsri 

:; iJ jiovioo Sri? 0* aaXi^ini/ooa 9riJ 6©«»tot»rtaiJ rioXati fe««nt boa '^o^ilqaaoo 



4 

that Baloh and Peterson thereupon opened an Investment account on 
the hooks of the corporation and placed these securitiee to the 
credit of the corporation in that account; that on Deoeaber 31, 1929, 
Balch caused his indebtedness as shoim on the books of the oox^oration 
to be reduced by the sum of $17,650, from 151,692.19 to 134,042,09} 
that in 1930 Baloh appropriated to his own use $6,663,55 over hie 
salary of |15,000; that on December 31, 1930 the books of the corpor- 
ation showed an indebtedness from Baloh of $40, 696, 64; that in 1931 
he appropriated to his own use '':r'5,407«47 in ezcess of his salary of 
116,000; that on December 31, 1931 the books of the corporation showed 
Balch* s indebtedness to be H6, 103,11; that further funds were 
appropriated by him in 1932 and 1933; that Balch, with the approval, 
connivance and assistance of Peterson, further deiDleted the coirporate 
assets by making large loans to his brothers Milton Baloh and Lou L. 
Baloh without security; that no repayments were ever made to the corpor- 
ation on any of these accounts; that the corooration conducted a 
profitable business but failed to declare any dividends because of the 
manipulation of B^loh with the connivance of Peterson; that in further- 
amee of the fraudulent scheme Balch and Peterson on December 31, 1904, 
without any repayment of the withdrawals and without any consideration 
being received by the corooration, charged off from the books of the 
corporation the entire indebtedness of Baloh in the sum of ^47,546,26, 
and also charged off the indebtedness of his brothers Milton and Lou 
Balch without any payment to the corporation; that at that time these 
defendants also charged off on the books of the corporation the so- 
called investment of ^7,660; that by these manipulations the surplus 
account of the corporation was reduced from a credit balance of 
079, 508,87 to a deficiency of ^^32, 277,31; that in furtherance of the 
schemes to defraud Mrs. Balch he, Bslch, filed a petition in bankruptcy 
in which he scheduled his total indebtedness as $53,831«77, which 
included the sum of i>47, 546,25 due the corporation; that at the time 
of the filing of the petition in bankruptcy this indebtedness of 



ti2StX «Xf. *?§eflfi9»e( ^:f j^asTDoos :!<aiCir tti woi^jrroefro* »iiiJ to ;Jjt»»«t» 

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sii! i»vs «S,S«S,at 9Wf fiwro eiri c# JNitf-'jUQOTCf©* ilil«B OS«I «1 *fUl# 
"^o<7io« 9d& to siocrf «i^* ocex ,15 t9<:fc«6«G ao *Ad;f SeOQgilt le vx«i»« 

to Tsslma sld "t« ««t«nc9 itJE t**fO^««$ »»« flifo tijtf «* &«t«i'!iQ0«<r^ Ml 
£©wf)JEia eof^^oqnoD »x!^ to Bilootf drf» xsex »X€ i^^Mdva no tsUd jO60««Xl 

etisrroo^eo »ri* fe«?s»X«j»fc -stiitrffft ,««»it«*»f to «ftj«itaifi»a fees ••*uivJtmio» 

.J »oJ 6(5« iJc»X«S flotfXSI »iftrf^o^ a ill of ««*oX aa^r^X sfil:l«« t* •>•••• 

llj «^0G^©9 *ifcf osr 9&«a itv© »•$•» «*ii*«t«<r»^ an »^^ri* j\iriijf0»« t»«iWl>» jfsXaC 

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-^fM«*«i«rt Bi cf?-fC:f j«OR^»^«>«l to ©®j««!Yiffi^oft »£i» Utfiv i*»X«S te ttiiit&IeqlMiim 

I 5^35/ ,IS <!t9«r««o«9 flo a««i«^®<r Siils ii«X»«H •ls«i!d8 fii©I«i»OTt wit to 96lt% 

nci?£i«Bi»«e© ^«s Jcf^iifiv ftWa aXAV»*rferf3'/v ^aNritf t© Jft»*x«Q«< fOA *«dil»Jhr 

•fir tc aaicetf 9iiJ aoit tt© il»;ins4o ,a«>i#i»^osrrfes ^^S" vdf ft^irlsosn aa4<»tf 

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uoJ: J>ftjs notXiM a<xeil^QYd •!£[ tc e«»fifr«^if*£/ii ftifl tie ht^jtm^i^ MXa 2>ilA 

aaftrf* ©wit taxljr tf* *«#» jff€l;r8irotjT;od aii^ «d r«aart«q Tfl» t»«yt»lw M«X«8 

-oe sii? iiei*£^©c(«i««» »J!* to salcod sfiff a© ito fc«8^Bill» osl* atfnafeiiat^A 

BXflq^wa ^dt mmltBlaqltiMK WimH» %^ tetit |Oee,TX^ to *«»»**• v«i B*XXa» 

to e©aBX«cJ ^ifiift'so A flwerit b9ouh^t ajw K©lt««ocrr«© M& Id tMrMrM 

•iHr ^o «8ii*£n»i(^nitft «i tBAS jXr,^WS,Sg| to t«naisitaA s ©» T8,tOt,«n 

^o^qtsnrijistf ai a^itf'iJaq s feaXlt ,xJ&XjRi^*; ,«>ri ri[ftX*6 .atK fc«j»*lt»l> ©JT MlMllfni 

liolrfw ,VV*X?'.9,5el »« *a•^i^1»:^cf»&fli Xjp*©* aiJf &«Xifft»lfM ari ifaiilir ni 

»jci;r ©x£* J« ;t«4fJ j«oitfis*JO(yxoe «i|{t »»!& ?rS»aM,TK' te wa •#!* kafeuXoitl 

to «a8n5«Jd9fcixi siritT XoJcri^i3fn«tf I-* ^^ »<fcr to -B^ii^ ^^^ ^^ 



5 

$47,546.25 had already been toy him charged off on th« books of the 
corporation; thi?t between January 1, 1935 and March 1, 1937 further 
funds totaling i;?7, 493,16 were appropriated by Balch to his own use 
and not repaid; that in 1936 Baloh and Peterson arbitrarily reduced 
the Telue of the aaohinery and equipment on the books of the oorpor* 
ation froB i39, 135.04 to |S5,000; that no appraisal was made by any 
ooBpetent person; that the sole puipose of the reduction was to further 
deplete the assets of the corporation so that such assets could be 
transferred to a. new contemplated corporation known as D. & B« 
Hanufaoturing Co.; that on August 10, 1936, Baloh, with the oonnivance 
of Peterson, M, J» Brown and Bamuel Oreen, caused to be organized a 
corporation known as the D, A B. Manufacturing Co.; that the incor- 
porators were the employees of the attorneys of Balch; that they had 
no financial interest in the coi*Doration; that on August 11, 1937 all 
of the shares of capital stock were transferred to M, J, Brown and 
Samuel Ghreea, who appear of record as the owners of all the shares of 
stock of the D. 4 B. Nantafaoturing Co.; that Brown and Green have no 
personal interest in the corporation or the stock and are mere dummies 
and agents for Balch; that Brown and Green have conspired with Baloh 
to keep the record ownership of the stock in their names for the 
use and benefit of Balch; that Balch, Brown and Green concealed from 
Mrs* Balch the fact that the stock of the new corporation was owned by 
Jaek H. Balch; that Brown and Green hsve never taken any part in the 
operation of the business; th^^t they did not attend any meetings of 
the shareholders or of the directors; that they did not receive any 
dividends, although the business has been operating on a profitable 
basis; th t from the date of the organization of the new corporation 
Balch has been its president and a director and has had the sole, 
full and complete charge of the management and control of the ooz*pora« 
tion; that Peterson was at all times the secretary and a director 
of the corporation, and aided, as sis ted and abetted Baloh, Green 
and Brown to carry out the conspiracy; that to carry out the fraudulent 
scheme Balch and Peterson, as officers and majority directors of both 



f 

$ri? to «:^cocf etlt no tto &9%tMdo aJU* \v uv^sd ^s9i£u bsA 9S«d^8«T>f 

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h9t>isb9i xXl'xtnSMne Biosi»S»1 kOA AeS&S. 9S6X ttl f,^A* iblMqet iom bam 

xiOK.noo d4^ to tJlftOtf 9Xi^ flo tfiMMM|i;»po &«« x^9MSJUm •^^ )o «t;X«T Sii^ 

Xa& xd ^Jb^Am BBV i«ai«igg« •« ixUli |OCO«iS# eiT J^O.SSI«QS% oortt aoltM 

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ecT l)iiie« 9^3®a^»» timi- .i fiiij o« floX;;tsio<^09 »4:f to aleasA ftd^ aiftXqftA 

M brnMlORt^ic h99$me ^a»«q# Xwrtusi* Jbna rnwia .Xi ,M ^oti[9t»<i t« 

XX« V5" , ' *««s*'^ 00 ^'S^ jnciJantocjioo 9riJ ni ■^n.wt^tnl l^loamalt om 

J&na fiire-xi^ «!. .M ©♦ lis^rxfttsiwx* ©aew ^Lttoifs Xs^ig*© to ••«i«Jte titf 1© 

lo s*^ajle »^J* IJa to st^mto nslS %s ki^9^ to i«*gqA oiiw «ii»*^ ItmntS 

sin£.&^ liitv b0itq9aGSf ^rad ii«9%^ bUB me&^i i»tii idoL»& lot ninm^m ba* 

AQit 6«Xft»a«w« aee^r^ ^oe m?cii^ ,iioX^ ^^;l {£idXe^ to i^it^ascf boM •«« 

X^ £>«avo a4itr noli:.ito^a9 w»n oii^r to jU^o^s *&f t^At i9mX 9Mi A9Xtfi ««nM 

9Mt al t^&q x^ a93iM3 ^9V9a tTjMt jmm^Ij fills mronB ^Tsji* U^eX^ 3 ;<«8l 

'lo B:^lt9»m XBJ^ ba^tia aro« bXb x^tiH ^jiMat iae»sUmvd •M to nol^ei«<3[« 

^£is ©vlsaei ;ron IbUb lail? 3%il? |8ic?o«iJLb •«!;? to no a*i«&Xoilrx.«ilt Mlf 

•Xcfa^itoiq » no i|ni^«i:»qo if&f>cf sjsil aa^oisiicf s>d;r ^svoit^Xe ^nafe/TlB 

jioX*fiie<;j;^oo vta Bti^ to iioi?aaiii«sio ©H? to »*sJb w!J «tat :t ilif («l8a<^ 

««Xoii »sit bASi «ad bas noio^tib » 6aft ;tatl)i;3»nQ bH etead ajul HaLaS 

•^locrsoo 9tiS tc Xe«r?»oo £tts Inansj^MUMi 9!tt to e^aTt^^o a^aJqeo* ^#^A XXwt 

loio^tlb a ftflfs itntsJsio** 91*1 8»i»i5f XX* *» a*w iKi*ne*»1 JsjdlJ ;floi# 

neaiS ,doXsS fc©;t*ada 6ii« 6»*ajta«« «£)iit&lA 6«f? ,noiJjjne<rtco ad* tc 



6 

Dal ton * Balch, Inc. and D, St B, Manufacturing Co., on March 1, 1937 
transferred and turned orer to the D, & B, Manufacturing Co,| all of 
the assets of Dal ton & Baloh, Inc., including machinery. Inventory, 
aecouAts receivable and good villf excluding the indebtedness of Jack 
Balch, Milton Balch and Lou L* Balch; thst the purported consideration 
for the transfer was $3,350, and the assumption of liabilities of 
Dalton & Balch, Inc.; that this consideration was grossly inadequate 
and amounted to a fraud; tht at that time the value of the machinery 
and equipment was 139,136,04, less the reasonable reserve for deprecia- 
tion; that the inventory of merchandise was in excess of 420,000; that 
the accounts receivable were in excess of ^12,500; that the good will 
was valuable; that through these manipulations Mrs. Balch was deprived 
of her interest in the assets of Dalton & Balch, Inc,; that notwith* 
standing the transfer of the assets, business was carried on without 
interruption at the eame place, with the same books, under the sole 
supervision of Balch, with the aid and assistance of Peterson; that 
Balch has continued ever since to operate the business as his own 
personal business, and did not render an accounting of his acts and 
doings to either Brown or Green, the purported stockholders; that as 
part of the scheme the corporation of Dalton St Balch, Inc. w«s not 
dissolved upon ceasing to do business, but was kept in apparent good 
standing with the Secretary of state for more than two years thereafter; 
that annual reports were filed with the Secretary of S^ate; that the 
franchise fees were paid notwithstanding the fact that the corporation 
had supposedly ceased and was without assets or funds; that in 1938 
the annual report of Dalton A Balch, Inc., was filed with the Secretary 
of State, but the franchise fee was not paid; that as a consequence 
the Attorney General filed an information and caused a decree to be 
entered dissolving the corporation; that Balch has been withdrawing 
large sums of money from the corporation over and above his salary; 
that he appropriated these sums to his own use; that he has at all 
times treated the business as his own personal business; that he will 
continue to persist in withdrawing funds and will dissipate the funds 



r 

• 

^XrioSamrU ^\i»ald»Mm ^^i^ulsmt «.qiiI «4&X^ ib ih»^Xa«^ %o &#«•«« Mt 

doidr.si9MsjS0d J&Q^<soqii?c 9x1^ ;r j'^;r iAgI&^ «J ju^ ifrilA ^«JUMS. ffotfXXM ^A»JU^ 

«»;riU/p«l>Biil xXese^a <b^v a9 lira's <iJ^i»Cb99 8i4sr I^Afiir SaCnX «A»Xiifi A moilaS, 

VxtoJ^tMsfi ti&t to «#X^v Bdi »«i;r ;^jsii:r ;}« ,rii^ iJbo^^j. m ^t b^tmomm bBM 

•"jjiisrxq^B •set fT%Mo« oX«rjiix««««^ «fi^ 8e»X «^0«^&i«^ •»« Iqwiqiirp* Mu 

ill^ ZiooK «i^ ?«ri/} (0O@«SXl'' to ae«a3s:« al «i«if eX^ftTissri ati»€eft« •Af 

i>e7l'sq0l> SAW Aela^ ^s^xK an^l^xJLv^jMtaB 9«e4^ i^cni^ ^eii^T {^XcUeXsT ««v 

«>i£riw^erc{ ^Afil^ ii>9JlX. i^oXfS A ffOjfXaS to «}»efiis 9tJt al ta9i»inL n«d l9 

i^yoil^iv {^e J!?9Xiifio SAW Qa<ifli8i,«i ,aiit«aaa »iU to «ist«iju;'x;f axLf i^fUJliumtB 

;fifjijt ;flc«?9;r»^ te »sii.«^sj;8«« J&aa JbJLs »«i;f ii^Xw ^^^tla-ii to 0claXintp<|tf9 

fn«r< ^^'( ».. ^^'>9iii«Lvd »A}' A^Aiefo dt »«ioX« ittve MjunigTaoo 5«4 HoX-oi^ 

.-o.. _.„* «v; ^ni^iujoooa «ui •»«J&i?9*x Jon feXJb ^na «93»ai3iK^ Xj»fioan»c 

•* t^"-- ^':fl:ieo?a &o}'xo<;[*uiq <MtJ ,as>»nrO le nwo^iti itftdtio o^ «;giiloI 

»w<. .>,- «^i>« ^i{>X«S ]b a,Qtls^ to aoX</i^o<l'x&« o4^ seo^et 9At to Mj»q 

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5'x«;rtja»'i»iW a's^o'i ow* a«ii^ ^tois mot «^a^2 to T5t£t«^o«0 ojl^ xttjhi -^Xtty^in 

floiJsioq^oe '^' ^ %&i }&«t »ii^ )aiAxi«;raii;riw?OA I>i6^ f%w »9ot yoiiiooAilf 

Viatfoioo^ 9&i At in &eXlt aciv ,«eAX «daXfl8 A so;ri96 ^c #^oqfrv Xamma oil^ 
ooi{at/p»iii&9 « as isjiit l&i«q ^cai bak •§! eaiiiMug'xt 94^ t^i^ «a:fii^" V:^ 
ed 0^ aert»oib s ftoaxfisa l>ii« aoil^«raotal aj| feeXlt X«'9»tf«f') x^cnQ^^^- '? :J 

JIb s\3 Gftft a/i ;Jiid;J joaiJ owo %lJi ot eiure saaji^ xjeluiicoiqcfA '' ' ''.. 

' " I's «4 J^iif ;Q990iatJcf XAneatoq uwo aid a« aaonisi/ti ecLJ MiffifiJ g^^io 

"^ ^03 9iA<il9^%th 111^ bam u&aut mmimamttt^m sU flh%B<x oi 



7 

of the D, 4b B, Manufacturing Co., and appropriate the saae to his 
ovn use; that he has threatened to liquidate the assets ef the corpor- 
ation and appropriate the proceeds to hia ovb use; that she fears that 
unless a receiver is appointed to taiks charge of the affairs of the 
corporation Baloh will carry out his threats and the business and 
assets of the corporation will be depleted and lost| that the estate of 
Olive £. Baleh, deceased, has suffered the loss of large suois of noney, 
the exact anount of which cannot be ascertained without an accounting 
under the direction of the court; that a trust should be Impressed 
t^on the defendants, D, & B, Manufacturing Co., Jack H. Baloh, Carl 
L. Peterson, N, J, Brown and Saauel Oreen; that the shares of stock 
in the naaee of Brown and &reen should be found in truth and in fact 
to be the shares of stock of plaintiff as administratrix of the estate 
of Olive ^. Baloh, deceased, and of Jack Baioh, in the saae proportion 
in which they ovued the stock of Dal ton & Baloh, Inc.; that Brown and 
Oreen be compelled to transfer and deliver the certificates representing 
shares of stock in D. & B. Manufacturing Co,, for cancellation under 
the direction of the couirt; that new certificates of stock be issued 
by the corporation to plaintiff and Jack H, Saloh in their correct 
proportion; and that the shar#s of baloh be charged and encumbered 
with his indebtedness to the corporation for moneys wrongfully with- 
drawn and appropriated. She further alleged thet she fears that in 
furtherance of the fraudulent scheme the defendants will cause transfers 
to be made of the oertifioates of stock to some persons unknown to 
the plaintiff for the ourpose of placing such shares beyond the reach 
of the court, and that transfers will be made of such certificates by 
Brown and Oreen unlese prevented by injunction, A second count of 
the complaint alleges that Mrs, Baloh, at the time of her death, 
was the owner of considerable personal property consisting of Jewelry, 
furniture, money, household furnishings, furs, clothing and personal 
effects; that shortly after her death Belch took possession of thm 
property, aopropriated it to his own use and sold a large portion of 
this property and appropriated the proceeds to his own use. In the 



T 

•<ie<^ee u£^ to eiTdoftA «il# »;»l>lur(»il o^ ' " (!^ ;••& «»• 

J^Aflif tis^t 0ile 9sMi i^uv twe aM cr ' i% fina ncttm 

9tAf to silstta tiSiS to esi64& ©AsJ c? .t:'5'?ftic<;'c /.LyoPi s atsXizif 

to e^fi^»« •jtfjT ;«iijr (ttel &ite &*if9lq»5 fttf I/lw ««i^««e^oo •!& to a^«at« 

,%enca tc atum 93g<Ctti to st«I 'iAi l>«*t«tti>a «»^ ^e«a«««£ «40lje6 .^ aTlXO 

^i^a&Goo^ jSfi #»Qil#iv ib»nla;?n»o«« «^ toiiiiA9 ii9ttbt to tavMui ;3^«<axa ttf9 

jfcaasisititfi ©tf fcliroiit iTsintt « *BfI# jttii©* 9Af to iiol;^o6tlfi •-«[* laftiur 

Xtj&O ^eXs© ,H jCftfit ,*oO y«ln»#detj;fljeM ,C * ,a ,iJ«aJ5a«t»ft tAi mqa 

jl50^a to a0ftjgjf« astf^ ^aXfiT ;n«a'xd XaJTAstf £>a£i ffrrxS •!> .M ,ffo«rt«la9 .J 

?{uit fll Sua xtiM/^sif tfi J^Avet ad Jbl&oiia tt»9*i0 bus fliwrS to vmbui ad^ nl 

«^a;^3« 9£t to xJht?jn:rBlfli:«6s afi ttitaJUXc to iaota to aarLatfa Mir ad o^ 

iiol;f'xaqo<sq ^oas qOH al (iCoIa^ :!(8J8l> to l(M ,iE»asjBao»& ,£fnXBC ,<S aviXO tc 

bOB tmcnG. $»ii3 ;««nX ^dolj^ j^ ixe^Xs€ to JTooiTe ajeET ^cmra vai& daliiw oi 

miitau^^^qe'i i&QKnQlJli'iVd •M fATlXa^ Ma <tct«ft«*t;r o^ £>aXXecpEe9 •(( fi»«vO 

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::;j ?K.; i-cf J[oo?a to itet?5Slti#l«o wtB t«x!J^ ;**t»oo aii« tc aclio«tlt> 9ttt 

iii9niot> il&M Ri AvIaH ,H afesL &iba ttWni«I<^ e* aoitf^ioqnoo 9dt t<J 

J&9iQdG»;ofla htm Aaatailft ad iCaXsH te ai^AiSa at^ }«£^ l^Aa {noit^oqoit 

"liilv xllut^ao^v a^aaoff 'vot noi^^fcocrieo 9Ai ot aa««6«^€r«Jbfll aid itflv 

Qi :}»a3 V'XAat Ada ^aii^ i»*saXX« fAJtitn •«(€ •be^eM^oicrQa tea «wa^ 

s'S9t?a»'y* ©ai/A© XXlw a^Kafcttetaft 4^ iNiaitas iToeXniiinB'rt «Jl;f to aoiutadtTiiit 

ot fiwcA^i^ snos^iac esoe ct J[&o^« to aft;r«oitX/'x«o aii^ to mbmm acf e^ 

j|Sj»ai 8r[7 ttaexB'^ aetiuia days sJii&jsXct to MO^rx'^q ailit 'set ttlloiaXq adl 

X^ »i^i eoltliS "i99 tfava to a&jss atf XXlv rsotait3*i;r ;f«d^ bsa ^inuoo •dS la 

to ;rn{f09 bAooaa A .liiaiYafurtJil x<f As^rnavati; saaXiiv m^^nQ tea «««yC 

,it;ra«£> ir^ff to aisXir eil^r la ^aXa^ ^aiM itsil* a»9aXXa ^aiaXqsaa 9dS 

^XtZ^vml lo gulJijiertoo t*'«»o.o*icr Xaisoa'xac^ ^Sdnfbi^iato tc rjeawa ad* aav 

Xaaoaiac fcAa gaidJoXo ,s«j5Ut ,asxiixlalmi/t •jlorfaiaoff ,TancB «a^fi;fifru/t 

ei^ to nui«9«eac-; iCoot xfoXjtfi jC^aaib t^d •ip.nx ^X^toift laif9 jaloatta 

to Bel&ieq «si a fta«i aair mve 9l£ o* ^X fimtr Xn^^o'XQca «%}naqQ*tc 



second count aha prayed for an accounting, that Balch be compelled to 
turn oyer and deliver to her all of the personal property in his 
poeeeeelon and the proceeds of any sold; that la the alternatlre a 
Judgment be entered against hla for the value of the personal property 
or of the proceeds thereof, and th«t an Injunction be entered restrain- 
ing hln and his agents fron selling and disposing of any of the Jevelry, 
furniture, moneys, household furnishings, furs, clothing and personal 
effects of Olive £» Balch, deceased^ 

On January 12, 1943 a special appearance was entered oB 
behalf of Dal ton & Balch, Inc., for the purpose of contesting the 
Jurisdiction of the court over that defendant* This was accompanied 
by a written motion, which in turn was supported by an affidavit by 
Jack )"alch. The motion and affidavit pointed out that the corporation 
was dissolved on May 1, 19S9, pursuant to a decree of the Superior 
Court of Cook County; that all rights of action against the corporation, 
its officers and stockholders for any liability incurred previous to 
its dissolution were barred^ not having been brought nor seirvice of 
process had on or before May 1, 1941; and that the action was barred 
because it was not begun within five years after the cause of action 
accrued. On Jan\iary 18, 1943 Milton H, Balch filed his appearance* 
The following day he filed a motion to strike the complaint, Ob 
January IS, 1943 Jack H. Balch, Dal ton & Balch, Inc., Carl L, Peterson 
aBd M„ J, Brown filed a written motion to diraiss the complaint on 
the ground thst the cause of action did not accrue within the time 
limited by law and that the claim or demand set forth in the complaint 
had been released. These defendants supported their motion by an 
affidavit by Jack H, Balch, Therein he stated that he was president of 
Dal ton * Balch, Inc., formerly a corooration; that the corporation was 
dissolved on May 1, 1939 by a decree of the Superior Court of Cook 
County; that the corporation does not any longer exist; that all rights 
of aetion against the eorporation, its officers and stockholders for 



n B^Ux<a't9tl& ts^ At tf'JWl* {JbiQB xfiB l«i 3&»s»oeiq «d» Boa 0Ol»a«i»oq 
■^ja^iSGfiiq Xisffo«T:o<l 9fU It) »iiXsv «|» aot mlA JafllagjB 59t«i^^fi« 5M5 ifntasJ^irt 

tViXevr^t 9fi^ 'to tfts le 3ftl»ot3«lft ^«a so-f-f-f'*® «>^^ «#«•*« sUl da« fflW v^t 

:i- ^v ^*'5:-tw©ffi XiitM^ii -,■■, ^^^Xo&(s>otfa ^^s sntaeltto •#! 

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co8i©Js^ ,a C-xsO ,,»fil ^fldiisfi * ni^lsf , *M i©«Tt S^fX ,SX t^AVrBt* 

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net •i«M«ilaf6o;r« Rita eteall'lo a*X ,aoi*»«o<r«oo s^* ;rtiti«s» a«JtJ»s \t 



L l< 



9 

anj liability incurred orevloua to Its dissolution were barred, no 
suit therefor having been brought or service of process had on or 
prior to May 1, 1941j that Dal ton & Balch, Inc. ceased doing business 
on March 1, 1937; that it incurred no liabilities upon any civil 
action on or after that d^^te; that the ooaplaint filed cannot be 
maintained for the purpose of recovering possession of eu\y personal 
property or daaages or for the alleged detention or conversion thereof^ 
unless sttch action was coiBmenced vithin five years after such cause 
of action accrued; that all the alleged causes of action set forth 
in the ooaplaint were on supposed unwritten contracts, expressed or 
iaplied, and were not comnenoed within five years after such cause 
or causes of action accrued; that M« J« Drown has at no tine been a 
director or abareholder of Dal ton & Balch, Inc,^ that if any ixt 
liability on the part of any of the defendants at any time existed it 
was released by Olive ^, Baloh during her lifetime, who, with full 
knowledge of all the facts, consented and concurred in the transfer 
of the as sett of Dalton ft Balch, Inc,, to the D, A; B. Manufacturing 
Co»; that any supoosed causes of action which Olive ^^ Bgloh or 
Dalton 4 Balch, Inc., had against Jack H. Balch or against any of 
the defendants was released and discharged and is barred by the discharge 
of Jack H, Balch in the bankruptcy proceedings mentioned in the coo- 
plaint; thft Olive ^» Balch had full knowledge and notice in her life- 
tiae of the bankruptcy proceedings; that the bankz*uptcy proceedings 
were had with the full knowledge, concurremoe and consent of Olive 
K* Balch; thst Olive £. Baloh knowingly and understandingly consented 
and concurred in the reduction of the aopraised value of the machinery, 
that the reduction was prooerly made and was made to the amount which 
at the time of such reduction represented the legitimate and read 
value of the machinery* 

On February 3, 1943 the court entered the following 
Injunctional order, based on the verified oonplaintt 



IJ 



• 

on ,&wrtartf #i«v aolt^j^Xosei* ntt o? etroiv^itc ft«rtn«^©fii x^iXitf&ii \tfl» 

&jPteJ r^e nottoe. \t »«»if«d ft#9«tXa 9d# XXq ^aiI^ (iMnoat mbli^M to 

10 &«s«9^qx« ,i»:}0ii<x^ii6o a^iiti'^mv ^9»«<|igv« «c tnov fiflsXqpoo tUt Hi 

• s^stf 9ml:} on ^Tb e^ crve^S ."t tM tsMi ;5»msd« nelt^ te t«air<io ic 
tmi to* t^ ^*i^^ 4 « Dili ^liotsl dl a4tfl«a fe T«i>XeifetAje{B no veteMrl^ 

IX«1 ^Jiv ,0i*» ,««l*«tiX t»Jt iiAjHoB rf»X*;=^ .^' STiXT '7;tf Mts«I*t *«v 

'TstRfl^t^- 5>rif ni j^o^'manoa Bfl« j&«tfi«iafio& ,»2fM) «d> XX« t« tsmiXwQJC^ 

"^ttti^^BtnaMlH ,« * ♦'! sffct oJ ,,ofiI ,ri©X^ * no;?X«0 te •#••«« ttd^ to 

10 tioligia 4^1 OTiXO ^oij^w iiel9o« to 8«a«fs© &«»«©<re«8 t«« ♦^^^ !••* 

to ^ru( ;te£(lfi>i<i <xo iloldH ^H J[9i»^ t^mlsgrn &4M o^^^ ,ifo£«9 il m9$tm 

tSisifooiS «iiG[^ tcf i)9«t«r^(f ai £)ji« do^st^^d^^^ &«« Soaaoian saw o^lt»^flotoft o^ 

-saoo oilit ill fe9noi*no« a^lft^oooicf '^o^g«td[n«cJ »rff ai jfoloff ,1 ioel to 

-"Stil i©ri nl 99i^oii Ma 'Vfsltt^t'mwti XXirt Jiari iloXair .* ovlXO itnH ;^ii1aXc 

3seiibs9e«^cf xo^<}d^ct«^^ 0£(:r t&A^ tescciftoooo^q tdtfqjni;ct«tf o;i# to %mti 

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l>e;fitoei709 tXs'ri&ns^s'^o&air iNtar %l'^alM€>a:K Aols^ ,1 oriXO }«j|jr jdoXal «S 

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'0£ »:tBCi9i^!^X 9/f^ tftJ'ao'tfnrcraY notf^tsbftibBV ^ mmit Oftf ta 

•f 9iY^^d£0 adt td o&Xar 

ttiilaXQOoo Boitliav 9ti$ iw AoajKf ^toMo J[o«o i# ia > f J 



10 

*Tliat a writ of In^tmetion b© issued In the above entitled 
cause by the clerk of thie court, restraining and enjoining the 
defendants and each of them, their restjective officers, agents, 
employees, serrants and attorneys, from in any Jiianner transferring, 
controlling or digr^osing of any of the as sets of the defendant 
D, 4 B, Manufacturing Cq,, e corperatioHj^ Except in the ordinary and 
usiuil course of business, and enjoining and restraining the 
defendants M, J. Brown and '-aauel Green from transferring, selling, 
assigning or disposing of any of the certificates of stock or any 
of the shares of stock now issued in their names and outstanaing 
on the books of said D, 4 B» Manufacturing '^o., and restraining and 
enjoining the said defendants £>, & B, Manufacturing Co., its agents, 
officers, directors, ^Bployeee, seiTants and attorneys from honoring, 
accepting and transferring on the books of aald corporation any 
such attempted transfer or aB?ignment of any of its shares of 
capital stock now outstanding until the further order of the court. 
That, for good cause shown, said injunction issue without bond*** 

On the same day, February 3, 1943^ the court denied the motion of 
Jack Balch, '^, & B, Manufacturing Co., a oorporstlon, Carl L, i'eterson 
and M. J. Brown to dismiss the complaint and ordered that the 
defendants answer the bill within 15 days. On February 5, 1943 plain- 
tiff's motion for the appointment of a receiver was continued to 
February 15, 1943, 

On February 13, 1943 defendants filed their answer and 
counterclaim. Jack Balch swore that he read the answer and counter^ 
claim and thet "such answer and counterclaim are true in substance 
and in fact*" The answer and counterclaim are quite Tolumlnous, 
taking up 44 pages. The defendants deny e^oh and every allegation of 
fraud, conspiracy or inequitable conduct and affirmatively plead (l) 
that %rfaatever olalm is alleged in the complaint took place in and 
prior to 1937 and was barred by the five year statute of limitations; 
(2) that Dal ton 4 Balch, Inc,, was dissolved by a decree of the 
Superior Court of Cook County on May 1, 1939, and by virtue of the 
Illinois statute no action may be brought against said corporation 
after a lapse of two years from the date of its dissolution; (3) 
that Olive 1^^ B^lch, whose rights are asserted in the complaint, was a 
director of Dal ton 4 Balch, Inc,, and at all times knew and consented 
to the conduct of defendants with regard to the corporation; and (4) 
that the claim asserted in the complaint was presented to the Probate 



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noi:^£ic<;fvoo hlA» lejoiA^ji ^£(j|v«nt<er v^i ^(mi aoXtaa en attf<rA«r» alofllXXI 

(€) \aotttilo99lb pit tc ^isJb ^^AH icmtl aK<i»t 6^ ^o fo^fX « fStm 

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m)»dei*i »Siit e4 5»toet*tq a^v tatBlnmo ajcU nl &»^»a«« «lAXn tiU i&Ai 



11 

Court of Cook County and that oourt, after hearing ©rld^nee thereon, 

dlsalsaed such claim. The counterclaia filed on behalf of Jack Baloh 

against plaintiff in her individual capacity alleged that on or about 

March 20, 1924 Darllne Moss, then known as Darllne Balch, was a minor; 

that he. Jack Balch, was then appointed by the Probate Court of Cook 

County as her guardian; that in January, 1957 he. Jack Balch, after 

due notice to plaintiff, filed his final report and account as suoh 

guardian in the Probate Court, vhioh account and report showed that 

eaid Darline Moss was then indebted to him in the sua of vS, 578,92; 

that the Probate Court on January 5, 1937 approved the report and 

account and thereby adjudged that Darline Moss was then indebted to 

hia in the sum of 12, 578«92, no part of which has been paid to him; 

and he asked judgment against Darline Moss for $2, 578«92 and interest 

thereon from January 5, 1937« On the same day the answer was filed, 

the then attorney for defendants served on the attorneys for plaintiff 

a notice that on February 15, 1943 at the opening of court in the 

forenoon he would present the motion of defendants to diseolre the 

injunction. With the notice served on February 13, 1943, he also 

served a copy of a motion to dissolve the injunction. The motion to 

dissolve the injunction was filed on the same day as the answer, 

namely, February 13, 1943, In their motion defendants urge the 

following grounds for dissolving the injunction} 

"1* There is no equity on the face of the eaid bill. 2» 
The material allegations of said bill are denied b</ the defendants* 
answer and affidavits filed therewith. 3. That, as shown by said 
answer, the said Dalton & Baloh, Inc. was dissolved on the 1st day of 
May, 1939, by decree of the Superior Court of Cook County aforesaid, 
entered in case Gen. Mo. 108350, and does not any longer exist and 
has not existed for a period of more than two years next prior to the 
filing of the complaint in this cause. 4. For the reason, as shown 
by te said answer, the cause or causes of action alleged in the 
ooaplaint, if any existed, did not accrue within five years next 
prior to the commencement of the suit herein filed. 5, No bond was 
required of the plaintiff before the entry of the order of injunction 
as required by statute and the plaintiff did not show any good cause 
for excusing the filing of suoh bond. 6, Other reasons," 

On *'ebru8iT 15, 1943 an order was entered on motion of solicitors for 

plaintiff, referring the cause to a isaster in chancery to take evidence 

and report his conclusions of law and fact« On the same day, 

February 15, 1943, the following order was entered: 



t 

XX 
,{3oe*f«Jl? »9c»feitre ^JN^sri •j».«'5:r ft-tueo J.=.d;f feff« y^iwoC XoeO ^o Jiucv 

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:8e«X9;rsi &»« se^STS^St itet «a<^ •jUJ^iaGF Jri»nl8^ tntRsU&trt ^iaA *d hMB 

t&«Xil asv ivtr^ns «»i1i ^b i^km •Ai siO .t'S^X ,a triAiWjBt a»«il loiweHJ 

9tit al ^tu&& ic ^lrt»qe tcW #a Si-ex ,dX Ti/drtGe dS •oiiom M 

^i^.t nvXosgift «t i»««f»i!r®t«& to «eX#e« »if? lueee's© Mif«« ad fle«fi«»<iol 

^^ri ,S*SI ,5X xtfiind-*'^ ffc Bsrs«B a^iJtM •Ai tUtfi •fieitaffiU'tAi 

o;f atiJttctP. »tif ,ftcti tumid t 9&9 •▼lose it; o? rL-^fJni? » !ko tco* s Bartat 

^«t©is«ir« sf(# eii \fih ©iss:: arf^ no &«ri t .tintwlal ad* aTloaalA 

8xlt »|i*!u s:f«5i'n»ls5 aoi^na! -^lec!:? «I ,5*<^X ,t*-X ^tatfttfa^ ,xXaaA« 

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•501 9ioi ioilofi ta fl/aiJo« Jio lj»l«*«« saw -rsMc cu 5*§X ,CX V***"*'*^ ^ 
«X^b aatta aif* aO «*•«) fcaa ^ftX 1« a«toi»vXaiioo slit *^cqa«x Acu 



12 

"On motion of Jacob 0. Grossberg, solicitor for dartain 
defendants, to dissolve the injunction heretofore issued, upon the 
coming in of the ansver of such defendaAts be dlssolTed, and the 
court having considered the complaint, answer and motion to dissolve 
such injunction, it is ordered thst said motion to dissolve the 
Injunction be and the same is hereby denied," 

On February 17, 1943 James V, Salleoi was appointed "temporary receiver 

of the business and all of the assets, accounts, securities, evidences 

of indebtedness, moneys, goods, receivables, contracts, records, 

corpoz*ate books, books of account, rents, issues and profits and any 

and all property and effects belonging to D, & B, Manufacturing Co., 

a corporation, and said Dal ton & Balch, Ino,, a corporation, and both 

of them. " The order rec^uired the receiver to give bond in the sum of 

15,000, and further recited: 

*Th«t it appearing to this court, after notice to the 
defendants. Jack H. Baloh, Dal ton & Balch, Inc., a corporftion, and 
D, & B, Manufacturing Co.. a eorpor tion, Carl L. Peterson and M, J, 
Brown and full hearing, th?t a receiver ought to be appointed without 
any bond being given by plaintiff to defendants, no bond need be 
executed by plaintiff as a condition to the appointment of a receiver, * 

On the same day the receiver gave bond. On February 18, 1943 the 

court entered a second injunction restraining Jack H, Balch and the 

other defendants from doing the acts referred to in the order of 

February 3, 1943, This order recited that the matter coming on for 

hearing on the motion of plaintiff for a temporary injunction, based 

on the verified complaint, the answir of certain defendants, and it 

appearing to the court that in the proceedings lately pending in the 

Probate Court of Cook County, in the matter of the ii^state of Olive £, 

B,ileh, deceased, the defendant M, J, Brown was sworn and testified as 

a witness, and that the testimony of said Brown was taken down in 

shorthand by a court reporter and transcribed, the transcript of such 

testimony being produced in open court and the court having heard part 

of the testimony of Brown as it appears in the transcript, and having 

heard the arguments of counsel, ordered that a writ of injunction issue 

''restraining and enjoining the defendants and each of them, their 

respective officers, agents, emoloyees, servants and attorneys, from 

in any manner transferring, controlling or disposing of any of the 

assets of the defendant D, A B. Manufacturing Co., a corporBtion, or 



Si 












itdt ei 9oiioti t^ilLti ^t'tiseo aJtMl e$ ps.X'm^cam il t^iB 



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«3 aviJX) to 9ts7- to 'xo^l^n oil^ aX tXitmoQ itooO to 9'xaoO a^acfen^ 

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^' cinoaoai^r eii) ^adi*xo«a4rt} bOM tai^ioqai ;t<moo n tP^ J^aaxl;^ico^ 

t*i^,q i^iaSfil ^iy«^ iftstoo QdS lass, ttifoo uacQ at b^oubviu ^£ti$<f x^oni^aa^ 

sal7«ii &a» tlqi^oaiisisr a4if ai aiaaq^^a $i aa irwetH to ^ffO0Ti:fs9^ ail# lo 

aaaai aoXSostulJai. to Jit^^v # 3'a/1# Aant^Ato ,-Xoeairoo to aJnercji/^tii »' d 

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._ * ■* -._• . 



.r\ _.^i>u.. A _-&...» -«i a « <*r .^__e.^^ik. 



_ ^« «_ 



13 

anj of the asssts of the business of said defendant Jack H, Baloh, 
olalaea by hla to have been aoqulrsd from said D, & B, Manufacturing 
Co., a corporation, on or about December 15, 1942, and enjoining and 
restraining the defendants. Jack H. Balch, M, J, Brown and Samuel 
Oreen, or any of them, firoa transferring, selling, assigning or 
disposing of any of the certificates of stock or any of the ehares 
of stock now Issued in their naaes and outstanding on the books of 
said D, & B« Manufacturing Co,, and restraining and enjoining the 
said defendant D« & B. Manufacturing Co., its agents, officers, 
directors, employees, servants and attorneys fros honoring and trans- 
ferring on the books of said oorporftlon any such attempted transfer 
or assignment of any of its shares of capital stock now outstanding 
until the further order of the court. T^at, for good cause showh, 
said injunction issue without bond." 

On February 18, 1943 the court entered a second order 
appointing a recelYsr for Jack H« Baleh as well as the other corporate 
defendants. The recitations in this order aro similar to the 
recitations in the order for the injunction. On February 19, 1943 
the court amended the recelTerehip order of February 18, 1943 by 
Inserting the following! 

"On motion of the court, counsel for both parties being 
present in court, it is ordered by the court that the order aopointing 
the receiver herein entered on the 18th day of February, A, D, 1943 
be and the eame is hereby amended so as to insert after paragraph 
Number 1 of Page 2 of said order the following: That said receiver 
shall not take over the actual mechanical operation of said business 
but is to oversee same to the extent that all assets are conserved 
pending the final hearing of this cause, and that the present 
management in charge of the mechanical operation of said business 
continue until the further order of court." 

On February 25, 1943 the defendants filed their written motions to 
dissolve the Injunctions and to vacate the orders appointing the 
receiver. The grounds urged as a basis for these motions are: (1) 
there is no equity on the face of said bill; (2) the material alle* 
gatlons of said bill are denied by the defendants* answer and the 
affidavits filed therewith; (3) that as shown by said answer, the 
said Dal ton * Balch, Inc., waa dissolved on the 1st day of May, 1939, 



ae^tjiAB eri^ to t«a *»«> 3C»€)*« to BSifiOitJti^i^o *d;? to xfl« to sniaoqalJ: 

to fesretidr «^^ fi« ■^lba»9^tsse bn^ 9i»B»a iHAi nl B8if««i yoe iloots tc 

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fSf^oillro ,«^ir*3« ail ^.oO ^l<ri;:ro£;^i;fieM «t i> »G #fi«&««l»A Mac 

•snjsT;} &A» ^i^iinoii ttc^t «t»'ni^<^^B £«£ •tiMV7*8 ,a9ex0X^«» ,«tc»rot*il6 

'tittt^niHnt &9$q8»l'^B ii«»« vub tt6ti!^ne<ftoo bin? to sXccd »ji# no T^l-n^t 

■ 1- 

. L, . ,c3« ji 6«ieJn« ?«i*»oo s4J SI'SI (fiX vi*f'x^9'% aO 

gni-: f«feio t ;f'xi;cr.- • Ji ,t^tfoo Ha :rt."> i?!"i.' 

Xlinu 

osr anoiJcm fl»J*i^v iHAS ft«Xlt t^asftfiAtftft •ff^f 5*eX ,3t vxe«irf»'5 nO 

(I) Jcta i!0aii^o«B 0<!r»rif net cnit prlT ,t«vle8«i 

••XXa l^ltAB^fm erf- • ri«l ftl««» to »ops^ \:*l«t?s on b1 fzniCt 

9iit had rt^mm *a^Riiibn«tfl>fi oilt x^ btitwfl •«« XXitf I^jUs to snol^ai 

©xl* ^ifiwtfia Jttc« \(i nvcAB as, *«ri* <5) {ii'ji¥»*i»ii:f feoXit «;?ir«bltt« 

«^€ex ,YisM to \Mh f9Z •dt no b9Vloti%lb a«v ,^<»r(X tiioX^G A oo^IsOf M«a 



14 

by deof«e of the Superior Court of Cook County aforesaid, entered in 
caee Gen. Mo* 108350, and does not any longer exist and has not 
existed for & period of more than two years next prior to the filing of 
the complaint in thie cause, and this court has not Jurisdiction of 
said dlssolTed corporation stnd of the cause and causes of action based 
on transactions of and concerning and in connection with such AlssolTed 
corporation; (4) for the reason, as shown by the said answer, the 
cause or causes of action alleged in the coniplalnt, if any existed, 
did not accrue within flTe years next prior to the oommeno«ment of the 
suit herein filed; (6) no bond was required of the plaintiff before 
the entry of either order of injunction as required by statute and the 
plaintiff failed to file such bond and the plaintiff did not show any 
good cause for excusing the filing of such bond; (6) the sworn answer 
herein filed conolusirely refutes any and all charges of fraud in the 
coBplalnt; (7) the charges of fraud in said conplaint are general and 
are merely the pleader's conclusions and state no specific act or acts 
of fraud; (6) the order of injunction herein entered on the 3rd day of 
February, 1945, Is superseded by the order of injunction herein entered 
on the 18th day of February 18^ 1943, and is functus officios (9) 
The estate of the eald OllTe £« Baloh, deceased, is in process of 
administration in the Probate Court of Cook County, which has excluslTe 
Jurisdiction of the subject matter of this suit; and (10) other reasons, 
appearing on the face of the complaint and of the sworn answer. The 
motion to vacate the order appointing the reoeirer is based on similar 
grounds, the only change being that the fifth ground recites no bond 
was required of the plaintiff before the entry of the order appointing 
the recelTer, and plaintiff did not show any good cause for excusing 
the filing of a bond^ On M«ireh 2, 1943 the court denied the motions of 
the defendants to dissolTe the injunctions and to vacate the orders 
anpointlng the receiver. The report of oroceedlngs shows that at a 
hearing on Febiruary 3, 1943 one of the attorneys for plaintiff, in support 



Hi Jketd^/ia ^blAsonolB x^nuoQ iiocc io J'lXicO lelitc^S sat* to mo^o^L \d 
icn e&iJ bBB fl%9 ne^oi / soB ban ,088^1 .019 .fisd Aajso 

b—*(S aoli9& ,%fi o«8£i.so bm •««»» 9dLf to 6a« aoJt7£i(Ktioo f^trloaaii £Lm 
ftavIofiaiJI d»u9 Atl^^ n^ltoecor nji ^nlat9Qae& baa lo tncl^iOA^ttmrt AO 

•ii;t ^-^ditaaa 6is« 4Mf9 x<^ fiwc^ia »s ^ifo&MiA^ Adt ict II^) inetteito^w 
,&0^eixe %f ;'»iaXqii09 a^Is^ «1 J^^S^-^-^^ aoi^&s to asajuio to •«|ia9 

snoldd tti^fiisXq etl^ to &»rtli;p«'x asw &aeGi ojk (3) ;l>»Iit aiettii ^Itra 

•dJ &1U 0^»:f«^« id bettiap^t »A AoltaJiirtni tc T»&no i«d:ri8 to t^^^as •x& 

Xa& vciia ^Toii &1& Itilnlislq •At baa httwi dw^ sijCt diT Jb«Xlat ttitfal^Xq 

tswaaa mows exi^ (3) {.C'/iocf dotia tc s^XXit «Ji:f s^laiidxa not aai/Ao bovg 

9di al i7UBit tc as-^juio XX« btui xoIm ntiul^t '^Xcf^iaaXoneo &9Xlt aiaia/i 

*as X«*»ea«;^ atis ;tni«Iqi»o Blaa oi &»«?! to n^yia/i^ arf* (V) ;?niaXq«o© 

Bio :itX&@Q8 ejc s)«i«;ra J^m:; anoiaJtrXiMieo «*^9J^9Iq «i(i# xXaiftc aia 

Ic X ;i> jD-xo 9iS»f Qo bni^iat ai^ntui ntiS&aulal to i»b*E© Bdt (8) ;&ifant to 

Bdis:rca aini&A aQlS9mii,al to fs^to dr*.^ %d 6»j&«8teq«ra «i «S^QX ^TUMtf*! 

V ^ ) loi;oXlto mffiliTIi a-t i^SA «&»ex ^X ifs&utda'^ to xak ATtX »iil lio 

to aaeeotq iiX si ^«Ba«oe5 ^oXa^' «>^ oriXO bJW^ ariV to a^ji#aa •df 

avXftitfXexe aa<i ^dii^ i^iTflvoO iCeoO to if'strc^ i#a«f«T% 9M ttl aciiei3%lalMb* 

lUioBAen tailtfo (bx) &as (jTIm aiil^ to 'ntiam toml^an wli to ftoX#94&aitiit 

adT «<iawans scsowa eti;^ t« !m» $nt»£qaGi^ «ri^ to 9»«t 8«U no laloMMM* 

leXimift oe btmmi al t@vX90»<i ai(;r ;giii3fiio<|r» laMo »: ;t a^aoAV e;^ noitM 

baod oa a«^X9»^ J^m/ota ^tjtt aii^r tj&dyr siiJtacf aafistfp X^a<^ *^ ««Mm«^ 

3ajt:tflioaQ«^«£>'Xo oii? to x;ita& «£i«r ffsotc4 ttiJrni^q ajt? to btniupvi %mt 

SaXs«i»c« <tet aatfft& 600:3 "Ciia ^o^ ^cm bib WM/mMg/im An* ,tevi«M^ ad^ 

to enQicTos a<£^ ft«ifla& ^rwoo a^liT C^NUC ^S d«i«M nO «f«Mr m to aM,£>Cl^ .M^ 

■•%«l^*iQ aia o;rsoaT o;f £n« aAoXcToauLHi a/it avXeaalA «# a^fwIWfctM ilV 

a 9a ^a«I;r owofia aSAil^eaoortq to >to«r9ri Mil' ««avi»ea't ailtf Biiltfai«9(|0 

3^iCQqi;a «X ,ttXrffli«Xq ^ot a^oino;tcrs sxi* to «no C*«X ,5 vt**»icf»i aO), ^timmA 



16 

of plaintiff* « notions for an injunction and for the appointment of 
a receiver, read to the court part of the t@stlfflony of M, J, Brown 
from a transcript of such testimony taken before the Probate Court of 
Cook County in the matter of the Cstate of Olive S, Baloh, deceaeed. 
This transcript ahows that in the Probate Court Mr, Brown testified 
that he vae a certified public accountant with offices in Chicago; 
that he met Jack Baloh in 1933; that he was aa auditor for Mr. Balch^s 
brother, Lou Baloh; that he, witness, reoslved stock in the D, & B, 
Nanufaeturing Co., In 1937; that he still possesses it; that the stock 
was given to him through the good offices of Lou Baloh, who promoted 
the deal for him; that he received the stock for no ollher reason than 
as security for money he loaned to Jack Balch; that he gave Lou Baloh 
$1,000; that Lou Balch then stated that he would require about 43,000; 
that witness first gave Lou Balch ^1,000 in 1936; that he returned the 
$1,000 in 1937; that witness then made another loan of til, 000 to Lou 
Baloh; that Lou Baloh repaid ^300 on this loan, which left a balance 
of ^1,700; that Lou Baloh told him that the money was for his brother. 
Jack Balch; that Jack Baloh came to see witness the next day and told 
him that Lou had given him the money; that the money was intended 
to be a loan to Jack Baloh; that witness did not ask for security; 
that the security was forced on him; that as security for the loan 
witness was holding 28 and a fraction shares of stock; that witness 
knew 5am Green, having met him in 1936; that he met him twice since 
then; that witness had nothing to do with the corporation and did not 
talk about the business of the corporation with Green; that he knew 
Green had some money in it; thrt witness did not know i^ether Oreen 
■ide a loan to Jack Balch, but was "pretty sire" that Gi*een made a 
loan to Jack Balch about the same time witness made a loan; that ^3, 600 
or $4,000 was needed; that witness was to put In one-half and some 
other person was to put in the other one-half; that witness did not 
ask for any security; that witness assumed Green was in Chicago for 



91 

to iR^^iMlcq^B trff t*! *«js aott&atslat ms. lot eneltoA a't'tiJoiAlc ^c 

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16 

the p«urpote of loaning Boney to Jaoic Baloh; that Green Is an attorney; 
that witness does not have a note representing the loan; that the loan 
vafl paid in cash; that the faet that the money v&e a loan was never 
discussed by witness in Jaok Baloh* s preeenoe; that the transactions 
were entirely with Lou B&lch; that he never attended any of the meetings 
of the directors of the 0, k B, Manufacturing Oo*| that he did not 
know whether he was a director of the oorporation; that he was an officer 
of the corporation but did not know i^at office he held. Witness later 
adaitted signing certain oiinutes of the oorporation. The court further 
certified "that upon the hearing of the motion for Injunction Jacob G, 
Grossberg, attorney for certain defendants, appeared and argued on behalf 
of said defendants, resisting said motion for injunction; that the 
defendant Jack H, Baleh was personally present in oourt; that at no 
time during said proceeding did said attorney or iaid defendant make 
mention of the fact that said Jack Dalch had acquired the shares of 
stoek of the defendant, D. A B« Manufacturing Co«, a corporation, issued 
to M, J, Brown and amuel Green^ and meither was it mentioned or stated 
in any manner directly or indirectly that the said cox*poration had 
been dissolved at any time theretofore* Said motion for injunction was 
heard by said oourt on January 12, 1943 and February 3, 1943* On the 
same date this matter was postponed in order to give the attorneys for 
the parties an opportunity to agree upon some person to act as receiver; 
that at the fux*ther hearing of this matter on the 17th day of February, 
counsel for both sides appeared in court, and the defendant Jaok H« 
Baleh was personally in court and said attorneys represented to the 
court that no agreement could be reached as to the person to be appointed 
receiver. That the matter was then again submitted to the court and 
said counsel for defendants failed to inform the court of the fact 
that the defendant Jpok H» Bdch had acquired the stock of defendants, 
M, J, Birown and Bamuel Green, in said D, & B, Manufacturing Cp,, a 
corporation, and that said corporation had theretofore been diseolvedj 
that the court on said 17th day of February, 1943^ thereupon appointed 
a receiver; that although the defendant had filed an answer to the 



•C4 

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n^dSivt tiMoe wff .flol^Aioqioo «ri# to aetfirfll^ ni.s3*rt« sfliw^la b^iitmbs 

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9Sii c.,t tpiwsna as baXit bstd ^fisbfi«tai> adl 4ffiiroiitXA ^Taii^ )iiaTiaoai a 



17 

eoaplalnt, consisting of 44 page a, on the 13th day of February, 194 3, no 
copy of the same was served upon the olalntlff or her attorneys} that 
OB the 19th day of February, 1943, when said cause again eaae before 
the court, counsel for defendants handed a copy of the answer to the 
court without in any manner informing the oourt or pointing out that 
the said answer contained the aTermenta that said Jac^ H« Baloh had 
acquired the shares of stooX &for>ementloned from defendants Green 
and Brown and that said corporation had been previously dissolved* 
Said Jacob 0, Grossberg, as attorney for certain defendants, at all 
times objected to the aoplioetions for injunction and receiver*^ The 
defendants appeal from the orders granting the Injunctions and appointing 
a receiver and from the orders overruling their motions to dissolve the 
injunctions and to vacate the appointment of the receiver* 

The first point urged by defendants It that plaintiff admits 
mt a matter of law that the claim alleged in the complaint took place 
in and prior to 1937 and is barred by the five year statute of 
limitations* Plaintiff contends that the transactions continued until 
January 4, 1943, and insists that the entire transaction must be viewed 
aa a series of fz*audulent acts and a conspiracy culminating in the 
final accomplishment ofthe purpose on January 4, 1943, when Balch had 
the stock returned to him by Oreen and Brown and when he dissolved the 
corporation and acquired all the business as his own« Defendants filed 
motions to dismiss under Section 48 of the Civil Practice Act on the 
ground that the causes of action, if any, alleged in the complaint were 
barred by the statute of limitations and supported these motions by 
affidavits* Plaintiff filed no objections or counter»affidavita« 
Defendant argues that by virtue of this, plaintiff admitted the facts 
stated in his affidavits* Plaintiff asserts that the statute of 
limitations does not apply in equity and that the doctrine of laches 
is applicable, citing Duncan v, Daaey, 318 111* 500* It is clear that 
plaintiff's claim is based on allegations of a constructive trust« 
In Illinois the doctrine of laches is applicable to an express trust, 
but that as to a constructive trust the statute of limitations is 



Vi 

" jfAdf l^x^tnoS^- ^'^(' to I'JWfliml,. -. ^i' ftertsa ii«-i» •ese «iti to fC[Oc 

. ; -jstvens *d.; ,. ■. - .. ■•.^•htmyi^.h let XsstAtfdO ,*fi»e» 6x13 

j»itJ j«c ijHlJnioq tc- ^nwco arid ..;..,.,. c -..: ....asm tfl* «i tweritJtw titfot: 

hni. MolijK ,K iio«L &le«) JaiiJ elfl««rt«ts td* fteal«Jnoo itwha i)l»« tiij 

n»e*xl) 3trtel>ft9t©^ •O'St ?><-f^.- f+-«*=^'?'VAtA loo** lo ft©'x«xl« *!«■ bsnlvp^ei 

e^j.^. ioiq ia&S •! 'is^8JB.fe«»t»fe ^cf fe»aT» ?al6q tftiit oiflP 

..u.^ »uiLaX<|Bo« •ilJ fli a«s€iXX« aflsl© eiftf J«il^ v^'' ^^^ "Q^riAU m li 

J58wslv 8cr Jejyrte «cl*s««fts'i.f siWar^ '* gJaiRCf Bus j <"; .> » ^Tuuaial 

9£» 5»vX©sai6 »ii fi»/hf »fi« Shj? B9«^ft x^ «Xri «>5f If»irtw»9i :fdo^ tA 

l>®XXt a?RB&«$!t«CI ^mfo 9iii ?.3 ss»cl&:- ' " rXs fc#*il»p«B fens flolt»*iotrf©i 

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fnmt JfliflXqmofi til? jsi fi»es«iXX*' ,ti' r'^i*^« '*«2 aeti/A© erif J?sf» ^m/en; 

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,:^Biri^ asenqxa a& oi Bldiiotlqqa txi aeddsX to f^atsioot eas ^ Ion tilt a, 



18 

applicable. In Qu&yle et al . v. Guild, 91 111. 378, our Supreme 

Court said (384): 

"In Albretoh v. ^^olf^ 58 Ill« 186, this court held the 
follovlng languages ''in Fainajn v. Brooke. 9 Pick, 212, it was held 
that the statute of Llaltatlone does not apply to direct trusts 
created by deed or will, and nerhape not to those created by appoint- 
ment of lav, such as executorships and administrations; but coh- 
structlre trusts, resulting from partnershios, agencies, and ths 
like, are subject to the statute. The doctrine of thst case is 
suDDorted by good authority, -alker v, alker. 16 Serg, * Raw, 
379; Kane ▼» Bloodgood, 7 Johns, Ch, 90! Herwin ▼, '^itiworth t 18 
B, Hon, 682, » yilheln v. Caylor. 32 Md. 151, is an authority to 
the point, th' t the rule with respect to the bar of the Statute of 
Limitations is eaually applicable in the case of a bill for an 
account by one oartner against another, as in other cases of a bill 
for an account; and see tfeisman v. Smith. 6 Jones* Eq, Rep, 124, The 
trust here claimed we regard as but a constructive trust, and so 
subject to the Statute of Limitations,* 

W« are of the opinion that in the state of the pleadings the court 

erred in granting the injunction and in appointing a reoelTer without 

determining the merits of the respectlye contentions. Defendants 

also point out that Dalton A Baloh, Ino,, wme dlssolTed by a decree 

of the Superior Court of Cook County on May 1, 1939, and that therefore 

no action can be bz*ought against th^t corporation, its directors or 

shareholders after a lapse of two years from the date of its dissolution, 

(See, 167,94, See, 32, 111, Rev, Stat, 1941). It is admitted that 

this corporation was dissolTed on May 1, 1939 and that more than two 

years elapsed after such dissolution before the instant action was 

commenced. At this time it is HmonrisHry unnecessary for us to paee 

on this point* 

The third point adTaneed by defenaants is that plaintiff 

admits as a matter of law that OiiTe ^, Balch was a director and 

knew and consented to the condvxst of defendants with regard to the 

property InTolTed, The motion to dismiss, aftpported by an affidavit, 

and the answer to irtiloh no reply or counter>->affi davit was filed, 

stated a complete defer^se,, and if the allegations of the answer are 

true, olalntiff cannot secure any part of the relief she seeks. 

Plaintiff states that a reply to the answer appears in the additional 

record. Apparently, a reply was filed by plaintiff after the defendants 

appealed, Ws declined to allow plaintiff to file an additional record 

showing the contents of the reply# This is a court of review and we 



t»*iii«»e we ««fe ^ixx xe .Mlift •» fj ff trfrjiif ni ♦sxaaaiiAc.* 



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* ^Baol^&Sleld to e^xf;t«^S 9dS oi fo^tcTut 

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ow;^ itexlif «^o» ^i>iAf ba£ Qt^l ,X x^^ ^o JbeTXoaaJLb 8«ir neiifis^ocnca alM^ 

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aaac :ot ^■ssaaeeonm; ^cxxxKvitRRs ei cri 9mli titdS SA •6aoa»wi«» 

«;:rnloq alxi^ ac 
tti^fllAXq ^dfi^ Hi BtflA&AotoJb xd b€tM»rbs iatoq btidi bsSS 

baa *tc^oBiJLA a a«w italAfl .^ otXXO >Aiil waX to iBiium & aa a^laAa 

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aia tewBiiA t>A3 tc anoi^rTs^-^-^^ *^^ ^^ ^'"» «a8«tata£ ai^aXc^soa a b«;^a9a 

,8J{©aa 9Xi» teXXa^ exl* to tiMo xnm anvofte #ojin«9 Iti^filaXq ^Bint 

£&aoiilbbn ariJ nl e-jsaqqa lawajEta . ;r»iU aeJs^a ttlJ^nlaX^ 

aSnMba9\9b bAS taJta ltl;roi«Xq ^cf JiaXit ajEw tXqn a ^x^inBtnqcA .t-iooai 

fitooei Xaflol»lb6fi n* aXlt ot ttlJnJ^Xq iroXX.« 9* l>efi|iXo«6 •»^ JbaXaaqq* 



19 

can only review a ruling of the trial court on the matters before that 
court at the time the rulings complained of were made. We cannot consider 
matters that were not and could not be considered by the trial court 
at the time the rulings were made. In view of the denials and complete 
defense presented by the affidavit and the answer, the court sl:u3uld 
not have granted the orders for the injunctions and for the appointment 
of the receiver without going into the merits of the case* 

The fourth point argued by defendants is that the orders 
complained of were entered contrary to law. Motions for preliminary 
injunctions where no answer has been filed should be determined solely 
upon the sufficiency of the complaint. Where an answer is filed, 
however, both the complaint and the answer must be considered^ If 
the denials and allegations of the answer present a defense to the 
relief sought, then it becomes necessary for the court to determine 
where the equity lies from testimony or the reading of affidavits or 
both. Section 15 of the Injunction Act (Sec* 15, Ch« 69, 111, Hev* 
Stst, 1941} provides that a motion to dissolve an injunction may b« 
made at any time upon answer, or for want of equity on the face of the 
complaint. Section 16 provides that upon a motion to dissolve an 
injunction after answer, the court shall not be bound to take the answer 
as absolutely true, but shall decide the motion upon the weight of the 
testimony. Section 17 provides that the plaintiff may support his 
complaint and the defendant may suoport his answer by affidavits filed 
with the same, which may be read in evidence on the hearing of the 
motion to dissolve the injunction. In view of the allegations and 
denials of the answer it was the duty of the court to hear testimony 
or to read the affidavits in order to determine where the truth lay 
before entering the orders for injunctions or the order appointing a 
receiver* 

finally, defendants urge that the court erred in granting 
the injunctions and appointing a receiver without bond, Seo* 54, 
Chap, 22, 111, Rev, Stat* 1941, provides that before any receiver 



f&l6Doo ion ••-&«« •it©^* to feaaisXqaoo asn/Jju art* J« ^li/oo 

^ii*K:rnio<|^ <3i;| ^sot SA}; ^snsi^twujit''' «^»/f ton 

»©Eso 9^ to #tfi*!»« «ji? orfai 'iiojf^J^ t9vX«o«i «f(f to 

'ij'saixi»iX»'f(| not sffoitoM . ;? ^.'ntflioo bttti^an «^»w To l>«nifiX(^oc 

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10 zii^Mbtltm to 8«ii6j60'5 ©ri* «o t<io«ite«# »o«rt a*iX x^i»rMi ftiJt onoifv 

.XXi -les .fl^' c-'C •i»9&) Jo^" aoil&RiitJiI ojftr to Si ncltvu^i' ,Ate€ 

•tii to eoBt sd^ ao X'^^^^P^ tc ta^rfr itot 90 «i»v«nj» fioqtf ©arijT x^ia ^-a ©6a« 

a« tv'XoesXJ& ©* aoi?o» z nccm tsM aofcirciq BX fl»id&#a •^tnX^XQMoo 

leveflA •d;^ sjCa^ o;r liimoif ad ten XXs£bi jTtijoo «£Ur «<r©wsaa lf«^t» noi^rnir^Ai 

qAS to i^xi^iav ©nt ao«» uauaiom wM nftlw^h IIaAb tu4 ,aiir«^ xi9stvlm4ii »« 

aXfl tioqqtfB x«« ttWiii«Xcr oril *«I* a©i&XTO^o ^X flcl?o©ti •^nofflWao* 

J&aXXt aliTja^iltA to lavana nlA ITio^ooa y^air tf{iiafeiml©& ©<f$ Jbn« itflljaXqai** 

•£i&' to gfii'xs^^ ^tii a& ©diraf^iv© «! &a»i ©d tan Jloliiv ,aa«e aUt ilf iw 

JNta »|icit«9«XXa ari^r to weiv nI ,/tcl^«iitft.«i *iHLr ©vXaaalb o;r BoUom 

%a9mit99i "xaaii ot ;fi»oo «ri$ \e x^uh odd a«v #1 iwana anff to ilalJiafi 

XaX ^f&i^ 9fi? 9t9thr »ninn©t«lt o;r laftio fli fttXreftitta 9A9 bA9ft cS f 

M ^nitaloq&B -saMo ©rid^ no aneWorojtnJt not tiaMo ari;? siii*xeln© ©lotsd 

•i<I©Vl89©1 

gni^jutf^ nX bail© Siuco ari^ tssii;;! o^^w e^rjoaAa^taA ^'^XXjiUill 

lavXaoa** x«« e-!tot©tf :*sfilJ a»I>ivo^c ^X*^X .faif8 ♦ri^l^ ,XXI *$S .qalO 



20 

thai! be appointed, the party making the appllo?.tlon shall give bond 
to the adverse party, provided that bond need not be reaulred when 
for good cause shown, and upon notice and full hearing the court Is 
of the opinion that a receiver ought to be appointed vlthout suoh bond. 
In this case plaintiff did not make any shoving vhloh would warrant 
the court In Excusing the giving of a bond. The statutory requirement 
was Ignored. Section 9 of the Injunction Act requires that the 
plaintiff shall give bond unless the court for good cause shown is of 
the opinion that the Injimetlon ought to be granted without bond. 
When the motion to dissolve the Injunctions filed February 25, 1943 
was heard, the court and the attorneys for plaintiff knew of the 
defense presented in the answer. Plaintiff complains of the failure 
of the then attorney for defendants to apprise the court and counsel 
for plaintiff of the contents of the answer that was filed on February 
17, 1943. Plaintiff knew that her motions were being vigorously opposed 
and It was her duty to read the answer. Certainly all of the parties 
and the court are presumed to have knowledge of the contents of the 
answer. It will be understood that we are not passing on the merits 
of this case. For the reasons stated, the orders of the ClzHsult Court 
of Cook County of Februa^ 3, 17, 18 and 19, 1943 are reversed. 

ORDERS REVERSED* 

HEBKL * IILET, JJ, CONCUR, ^ 



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aeiJ'^ "'' - :. - ,i©ip®«a @ilt ajse*! els' t^J^^ 'Jftrf s^ ^ 



42357 



CHAflLES FRANCIS COLEMAN, 



Plaintiff and Appellee, 



^,. 



V. 



,«rf^^ 




320I.A. 136' 



GIRCUITOOURT OF 

COOK GPUNTY. 

J* 

■-f-i 

A, Meier, Jr., 
[ge Presiding, 




MARJORIE BLOCK 'i>MB, Ki^tN R, BLOCK, 
PHILIP D, BLOCK, Trul^, under the 
Last Vlll and Tef^ament of='*^ji^nuel 2f, 
Block, deeeasejj/ and LEOPOLD t5$-*J^£CK, 
Trustee unifl«f the Last 'ViH and " ^--^ 
Teetanefft of Emanuel J, Block, deceased 

Defendants and Apnellante. 



MR, JUSTICE HEBEL DELIVE'IEd THE OPINION OF T^B #©»f ».^ I 
The defendants in a suit at l&vr by this appeal seek to = 
reTeree a judgment of the Circuit Court of Cook County rendered 
against the defendants, Marjorie Block stein, Helen R, Block, 
Philip D, Block, Trustee under the last will and testament of 
Emanuel J, Block, deceased, and Leooold li. Block, trustee under the 
last will and testament of Soanuel J, Block, deceased, for 5,000 
and costs, for broker* e oomffliesions found due the plaintiff in 
oonnection tilth the gale of the Empire Stock Farm in Kane County, 
Illinois, Judgment was rendered pursuant to a Jury verdict in 
favor of the plaintiff against the four defendants* 

Two points are raised in this case on the pleadings, the 
first being the question of Vfariance between the plaintiff's amended 
complaint and his proof, in that in paragraph 11 of the amended 
complaint the plaintiff alleges that the purchase of the property 
from the defendants was due solely to the efforts and services 
rendered by the plaintiff In Inducing the purchaser to Inspect the 
property with the plaintiff, ajid in supolying the purchaser vitlg. 
the names and addresses of the then owners of the property, whereas 
the proof, as alleged by the defendants, shows that the plaintiff 
never inspected the property with the purchaser, nor Induced the 
purchaser to inspect the property, and that there Is no evidence 
whatsoever that the plaintiff gave the names and addressee of the 
owners of the property to the purchaser. 



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s 

The second point raised on the pleadings Is the contention 
of the plaintiff in the trial court that he was not required to 
establish thst Henry L, 5tein vas the agent of the owners of the 
property, because the agency was admitted by the pleadings. Paragraph 
3 of the amended complaint alleges thst the defendants, "by and 
through Henry L, Stein, the husband of said Marjorie Block Stein, 
the duly authorized agent of the said defendants, did employ the 
plaintiff and requested the plaintiff to find and procure for the 
defendants a DUjrohaser for the said property"* In the answers of 
Helen R« Block and Marjorie Block B^ein to the amended complaint| 
•aeh denies paragraph 3 of the amended complaint and each and all 
of the allegations therein contained. In the Joint and several answer 
of Philip D, Block and Leopold n^* Block, trustees under the last 
will and testament of Himanuel J* Block, deceased, to the amended 
complaint, they state: '*A8 to paragraph 3 of the amended complaint, 
these defendants deny that these defendants, by or through Henry L, 
Stein or anyone else, did employ the olaintiff or request the plaintiff 
to find and procure for the def ndante a ourchaser for the said property **« 
Defendants contend that on these pleadings there is neither a proper 
allegation of agency in Stein nor a failure of the defendants to deny 
fuoh agency* 

It appears from the statement of facts that l^anuel J. Block 
died early in March 1959, and left as a part of his estate a large 
dairy farm located in Kaae County, Illinois. His will was admitted 
to probate In Kane County, Illinois, on March 21, 1939* Iftider the 
terms of the wlll^ after certain specific bequests, the decedent 
left all the rest, residue and remainder of his estate. Including 
this farm, to his two brothers, Leopold i^^. Block and Philip D. Blook, 
as trustees, with full oower of msj:iagement and Bale, with the 
direction to pay the net income from the trust estate in equal shares 
to his two daughters, Marjorie Block Stein and Helen R« Block, and 



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3 

to pay one-half of each daughter's share of said trust estate to the 
daughters when they respectively reach the age of thirty years, and 
the other one-half of the trust estate to each of the daughters when 
they reppectirely attain the age of thirty-five years, The trusteee, 
who were also the executors under the will, and as executors were 
given the same powers ae were given to theai ae trustees, were anxioua 
to sell the Empire Stock Farm, Within one month after the death of 
Emanuel J, Block the trustees under hie will employed a broker by 
the name of A, L, Allen to find a purchaser for the farm, and Allen 
worked on the sale of the farm from April to November, 1939, when the 
farm was sold to one Harry Markheim, pursuant to a contract dated 
October 3, 1939 between Markheim and Leopold E, Block and Philip D, 
Block, ae executors and trustees under the will of Emanuel J, Block, 
deceased. Henry L. Stein, the eon-in-law of ^'manual J. Block and 
the husband of Marjorle Block Stein, had often visited the farm and 
was familiar therewith. The trustees, Leopold £, Blook and Philip 
D, Block, were not at all familiar with the farm and had probably 
never seen lt« It was natural, therefore, that in an effort to sell 
the farm inquiries regerding the fans were referred to Stein, 

In May, 1939, the plaintiff, Charles Francis Coleman, a 
real estate broker, met Harry MarkheSm, an attorney in Chicago, 
found he was looking for farm property, ani showed him numerous farms, 
but never took him on the Elmpire Stock Farm* At one time it appears 
from the facts that early in June, Coleman drove Markheicn along the 
public highway past the Block farm, and mentioned it as being the 
finest farm in the region. Markheim replied that it vras too big and 
that he was not interested, and would not bother to stop and inspect 
the faznH« 

It also appears from the facts as they are in this record 
that Coleman* 8 only effort thereafter to sell this farm ooneisted in 
taking some photograohs of the ferm and sending them to Markheim in a 



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4 

letter dated June 21^ 1939, vhereln he suggested that a Mrs, Thome 

buy the property south of the road amd that Markhelm purchase the 

farming oortion of the property. Plaintiff* s testimony indicates 

that 8t this time he hoped to make a sale of part of the property to 

Marltheiffl and part of the oroperty to MfS. Thorne, who was one of 

Mr. Markheim'e eliente, MErkhelrn returned the photographs with a 

letter dated June 23, 1939, clearly indicating that he was not interested 

in the farm and that he had no idea whether or not the residence would 

appeal to Mrs. Thorne - - the t she was out of the city and not available. 

During the last few days of June, 1939, A, L, Allen learned 
from a mutual friend, Mrs. Fieke, that >iarkheim was looking at farms, 
and he called Markheim by telephone and made an appointment to show 
him some farms in the Kane County region. On July 1, 1939, they 
looked at T&rious farms. On July 2, 1939, after looking at other farms, 
Allen pointed out the Block farm to ^Harkheim, and after some considerable 
effort induced him to go on the farm and look it over. Markheim 
iouaediately "fell in love with it** and asked Allen to ascertain whether 
or not he could trade in his California ranch for it. Allen later 
advised Markkeim that no trade wes acceptable, Markheim, still thinking 
the farm was too large for him, continued to look at other properties 
with Allen, but finally on August 1, 1939, he made an offer through 
Allen to buy the portion of the property south of the road for ;»55,000, 
partly in cash and partly oayable over a ten-year period. Due to 
Leopold £«, Block's absence from the olty, this offer, which was 
subsepuently refused by the trustees, was withdrawn by Markheim, 

It appears from the facts that Markheim never went out with 
Coleman after June 10, 1939, but looked at numerous other farms with 
Allen throughout the summer, and finally, late in September, 1939, 
made an offer through Allen of "100,000, part cash and part purchase 
money mortgage, for the entire Emoire Stock Farm, The trustees still 
refused to sell at this orioe but finally came to a price of $105, 000, 



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5 

After further negotletions, at the suggestion of Allen a deal was 
worked out and a contract vas entered into on October 5, 1939, whereby 
the trustees agreed to sell for $105,000 - - vs40,000 cash and a 
165,000 mortgage, subject, however, to the right in the purchaser, 
Markheim, to pay off the ^65,000 mortgage at $60,000 if full payment 
vrae made within one year. The sale was consummated on this basis 
and title passed on November 4, 1939, as of November 1, 1939, Allen 
was then paid a commiseion In accord&nce vlth the contract* 

Plaintiff states, regarding the facts as they are related 
by the defendants, that defendants have r>roperly stated the form of 
action but under the caption of The Pleading, instead of complying 
with Rule 7 of this court by stating the nature of the pleading, 
counsel Interject an argument on the question of variance; thpt if 
there had been a variance which the olaintlff does not concede, it 
kB now raised for the first tine and cooes too late; that a variance 
must be specifically pointed out on the trial and cannot bA raised 
for the flret time on appeal; and cites Mulligan v. Metropolitan Life 
Ins. Co >. 149 111. App, 516, and Heavelv v« Harris^ 239 111. 526. 

It is oontended by the defendants thst the plaintiff, 
Coleman, was not the procuring cause of the sale of the Empire Stock 
Farm to Harry Markheim; that the sale was actually brought about by 
the efforts of a second and independent broker, K L, Allen* It Is 
suggested from the evidence in this case that the plaintiff, Coleman, 
in the course of showing numerous farms to Markheim, merely pointed 
out the Empire Stook Farm, but never >ra8 able to persuade %rkheim to 
go upon the farm or inspect the buildings. On one or two other occasions 
he discussed with Markheim the ooseible ourohase of the Eaijire Stock 
Farm, and on J«ne 21, 1939, he '-'rote a letter to Markheim which it is 
suggested was apparently the culmination of Coleman's efforts to sell 
the Empire Stock Farm to Markheim, as the testimony of both Coleman 
and Markheim indicates that after the date of this letter Markheim 



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6 

never went out with Colenen and that even correspondence between thea 

with respect to other farms ceased within a weak or two thereafter. 

It is suggested that fro« plaintiff's letter of June 21, 1939, 
the following things are apparent: (a) Colenan did not know whether 
the owners would divide the property or would sell the farm part of 
the property at all; (b) Coleman was suggesting a sale of the estate 
house to Mrs. Thome and that Markhelm purchase the farm portion of the 
property; (o) the price of the farm had not been discussed; (d) %rkhelm 
had not seen the Empire Stock Farm and was not Informed as to the crops, 
live stock and InTentory; (e) Coleman himself was not thoroughly 
familiar with the fans and expected to get further information at a 
subsequent meeting with Stein, which meeting never materialized* 

Markhelm, in his letter of June 23, 1939, replying to Coleman's 
letter of June 2l8t, clearly indiceted his lack of any real Interest 
in the Block fsrm, and Inasmuch as he had no idea whether or not it 
would appeal to Mrs, Thorns, he saw no purpose in inspecting the farm 
at that tima. Clearly, as shown b, these letters of June 2l8t and 
June 23rd, Coleman had definitely not at the time he last dealt with 
Markhelm, procured a purchaser ready, able and willing to purchase on 
terms satisfactory to the seller. Markhelm expressly stated that when 
he last saw Coleman, Markhelm did not feel that he wanted to buy the 
Block f£^rm. He had no intention or desire at all of buying the Block 
farm before ne met Mr« Alien. It appears that Coleman did not even 
know whether the seller would sell all or any part of the farm, except 
possibly the estate house, which house h« was not even trying to sell 
to Markhelm. It appears also that he was not rea^y to disousr^ price, 
not ready to discuss the farm property Itself, and he had not shown 
the farm to his prospect. He had not procured, and never did procure, 
any offer from Markhelm, Coleman testified that he never met the owners, 
that he never met the beneflelariee of the trust, and that he met Henry 
L, Stein only once* He failed to show that Stein was the agent of the 
owners or anything other than a relative by marriage. He never procured 
any offers and he never participated in any of the negotiations pertain- 



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7 

ing to the actual sale. 

Th9 reply of Coleman to the suggestions that ware called to 
our attention by the defendants is that of the several brokere who were 
trying to sell the farm Coleman was the first to Interest Markhelm, 
and points to a letter dated June 24, 1959, written by Markheim to 
BealB, a broker, advising his that Coleaaan was the first broker to 
subait the farm to hin, and Maricheim sent a copy of the letter to 
Coleman; that in the same letter Markheim stated that the farm was 
too extensive for his requirements and that it was most doubtful if 
he would develop any interest in it« On the day previous, Markheim 
wrote to Colemmn, in which letter he stated th@t he thought an 
inspection of the premises at thst time was a little premature, since 
Mrs, Thome would not be back in town until fall* "Fraxxkly, I don't 
see how anything can be aooomnlished until Mrs. Thome returns to 
Chicago, I have looked et the photographs, which are very attractive. 
Thinking you may have need for them in the meantime, I am returning 
them herewith", Markheim testified that he met Coleman May 1, 1939, 
and saw him seven or eight tlass up to June 10th, and that the last 
time he saw him was in the latter part of June, 1939; that he went 
out with Coleman seven or eight times, Markheim also testified that 
Coleman did not have any further dealings with him after the middle 
of July, 1939, 

Markheim vas cal].ed as a witness, first by the plaintiff, 
and later by the defendants, and so far as the olaintiff was concerned, 
Markheim was a hostile witness^ Markheim told Coleman that he would 
like to talk to the owners as he thought he could get a better price 
than having the broker gm back and forth. So, it is suggested, it is 
quite apparent why Allen was substituted as the broker, Markheim got 
the farm at a lesser price than the figure given to Coleman by Stein 
and the defendants oaid Allen a smaller commission than was claimed by 
Coleman, Stein preferred to have it appear thet Allen acted as the 
broker in the deal. He recommended Allen to the trustees and conferred 
with Allen frequently* 



V 
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8 

Allen testified that in February, 1939, he called up the 
trustees and made incuiriee about trying to sell the farm for them 
and was inforaed that they were not considering selling the farm 
at that time. Around April Ist, he called them again and he was 
told to get in touch with Stein* He got in touch with Stein and "he 
consented to ay dealing with the farm". The olaintiff In this action 
states in this connection that Stein knew that Coleman was the procuring 
oause for Coleman gave Stein Markheim* s name, and although Stein 
denied it the Jury did not believe him* It further appears from the 
facts stated by the plaintiff that Allen did not meet Markheim until 
about the first of July, 1939, and up to that time he had never heard 
of Markheim before, Allen testified on cross examination that he 
first talked to Markheim the last few days in June, over the telephone; 
that he had never met Markheim and the first time he met Markheim 
was when Markheim came to Allen's farm in response to the telephone call. 

To sustain his contention thst Coleman vas the procuring 

cause, plaintiff cites the case of Rigdon v. More . 226 111, 382, 

where th« court said: 

"Nor Is It always necessary thst the purchaser should be 
actually introduced to the owner by the broker, provided It appears 
affirmatively that the ourohaser was Induced to apply to the owner 
through the instrumentality of the broker or through means employed 
by the broker. It is sufficient If the sale le effected through 
the efforts of the broker or through information derived from him," 

Further in iuoport of his contention plaintiff cites the case of 

poggett V, Rupoertf 178 111, App, 230, where it vras contended that 

the broker who bi*ought suit was not the procuring cause of the Bale, 

that his employment had ceased, and that the sale was brought about 

thz^ugh other causes than through the efforts of the broker, and 

this court said in its opinion: 

"It is not necessary to narrate It in this ooinion. After 
giving careful consideration to the record before us, we are unable 
to say that the conclusion of the jury vae against the weight of the 
evidence. The question whether the services and efforts of Doggett 
were the procuring cause of effecting the f^ale to Keener, was a 
ouestion of fact for the juiry, and upon the record before us lt» 
verdict should not be disturbed," 



Ji 



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9 

A further oitatlon 1« the ease of Pagar & Johnson v, Spurling, 176 111, 

Apo. 349; also Ogren v, ^undell^ 220 111. App. 584, and Knott s v* 

L. S. & M.3. RY« CO ., 172 111. Apr>, 550» 

However, it Is further to be considered that in a case where 
t-vo independent brokers are involved in the f-ale of property, it is 
the broker who actually Droeures the eale, and not merely the broker 
who first shows the property, who is entitled to the ooramission. 

It is urged by the defendants that in contrast to the 
activities of Colenan which have been mentioned, the evidence clearly 
shows that the broker Allen worked long and hard on the eale of the 
Eapire Stock Farm, He was eaployed as a broker by the defendant 
trustees early in April, 1939, advertised the property for sale and 
showed twenty-five or thirty prospects over the farm during the spring 
and summer months. About July 1, 1939, Just at the time that Coleman 
was abandoning his efforts to sell the Smpire Stock Farm to Markheim, 
Allen, through a third party learned that Markheim was looking at farms 
In the Kane County regioh, contacted ^arkheim, showed hia numerous 
farms, and induced Markheim, against his will, to go on the Empire 
Btook Fara and look it over, which resulted in Markheim* s making an 
offer for the farm if a Califoimia ranch would be taken in trade. When 
this proposition was rejected, in an effort to make a deal within 
Maz4cheiB*e price range, Allen attempted to, and did, persuade ^rkhelm 
to make an offer on August 1, 1939, for a part of the faiw and procured 
an earnest money deposit In connection with this offer. vhen Markheim 
subsequently withdrew this offer and the eaae was likewise rejected 
by the trustees, Allen did not give up but continued to talk about and 
show this fara to Markheim. He persuaded the trustees to reduce their 
price many thousand dollars and induced Markheim to increase his offer 
and to make an offer for the ourchase of the entire farm. It appears 
from the facts that by September, 1939, he had persuaded Markheim to 
offer £> 100, 000, and he had persuaded the trustees to accept 1105,000^ 



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, rX^TSft eiJ^f to 3«!^ilf- ' T»Ho <iA »:jf«a ot Ana 



10 

Allen iv^gested the final arrangement on which the sale was consummated, 
namely, that the trustees sell for $40,000 cash and *65,000 purchase 
■onejr mortgage, subject, however, to the right In the purchaser 
Martchelm to pay off the |65,000 mortgege at 160,000 if full payment 
was made within one year* The sale was eoneujamated on Hovember 4, 1939, 
as of NoTesber 1, 1939, and Allen ^^as paid a oonmiseion in aceordance 
with the contract* 

The defendant in this action contends that the jury erred in 
returning a rerdlet for the plaintiff, and suggests in their brief that 
the plaintiff Coleman was not the procuring cause of the eale of the 
Eopire Stock Fam to Harry Markheia; that the sale was actually 
brought about by the efforts of a second and independent broker, A^ L« 
Allen; and point out and call attention to the evidence, which secnas 
to indicate that the plaintiff Coleman in the course of shoving numerous 
farms to ^arkheim merely pointed out the iiimpire Stock Fans, but never 
was able to persuade Markheim to go upon the farm or inspect the buildings; 
t^t on one or two occasions he discussed with Markheim the possible 
ourehase of the Estpire Stock Farm and on Jtme 21, 1939 he wrote a letter 
to Markheim, which apparently was the culmination of Coleman* s efforts 
to sell the Emijire Stock Farm to Markheim, as the testimony of both 
Coleman and Markheim indicates that after the date of this letter 
Markheim never went out with Coleman, and that even correspondence 
between them with respect to other farms ceased within a week or two 
thereafter* 

Vlhile it may be in a measure somewhat of a repetition of 
the suggestions thet we have made in the statement of the facts, it 
appears that Markheim in his letter of June 23, 1939, replying to 
Coleman* s letter of June 21, clearly indicates his lack of any interest 
in the Block farm, and inasmuch as he had no idea whether or not it 
wiuld aopeal to Mrs. Thorns he saw no purpose in inspecting the farm 
at that time. It appears clearly from the letters of June 2l8t and 
June 23 that Coleman had definitely not at the time he last dealt 



01 

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dfX ton 10 ^i^At^dm «i«fci Oi5 bari ««f •« floua^iaflf ftna ^fp««t ;tf*«rXa uti^ at 

fin* iraXS 0«iili to »*£»J^*»X tritf aso*it xXiatXa s^A*<;q« il .^•It *»d# tt 
t£A9b taml •d *Kti »iii i» 99a xXe^fXnXteXi b&A oaimXoO tnat SS •iwl 



11 

vltb Marlshelm orocured a purchasar ready, able and willing to purchase 
on terms satisfactory to the seller. Markheim expressly stated 
that when he last saw Oolemsn, Markheim did not feel that he wanted 
to huy the Block farm. He had no intention or desire at all of 
buying the Block farm before he met Mr, Allen, It is clear that 
Coleman did not even know whether the seller would sell all or any 
part of the farm, except possibly the estate house, which house he wae 
not even trying to sell to M&rkheim. It appears too that he was not 
ready to discuss price and he was not ready to discuss the farm 
property itself; and he had not even shown the farm to his prospect. 
Colemajn testified that he never met the owners, that he never met 
the beneficiaries of the trust, and that he met Henry L, Stein only 
onee. He failed to show that S^ein was the agent of the owners* 

However, when we come to discuss the plaintiff's brief we 
find that the suggestion is offered that Coleman was the procuring 
oause of the sale of the Empire Stock Farm to Markheim, that author- 
ities cited support the statement, and that the question whether 
Coleman was the procuring cause was peculiarly within the province 
of the Jury to determine. However, it appears from plaintiff's own 
brief that there were several brokers who were trying to sell the farm, 
and the suggestion is made that Coleman was the first to interest 
Markheim. It does not appear from the evidence in this case that there 
was any contention by Coleman that there was a prospect of selling 
the farm, because on the day previous to June 24, Markheim wrote to 
Coleman a letter in which he stated that he thought an inspection of 
the premises at that time was a little premature, since Mrs. Thome 
would not be back in town until fall, and "Frankly I do not see how 
anything can be accomplished until Mrs, Thome returns to Chicago. 
I have looked at the photographs, which were very attractive, which 
you mailed to me. Thinking you might have need for them in the 
meantime I am returning them herewith'*^ It apoears from the facts 



XX 

bttaayi ^ ditjAi X99I ion &I& gsi«d3i^'!i«^ ^omeXoO w«e ;fft«X •£! ft»£i» iMAt 
to XX« tji 9*i,ls9fi *te aoUmSaX on Sail »R .wifet JtoelS •di' ^<J o* 

%tf» no ZIb Ii9?i &IM9V •j*XX«i •d^ ^wSWwttf voni m^9 ioa feX& tmrnmle^ 

t«v •xi ftstioii At>ld¥ ,eiiuoil v^Atst i»i& ^X<fla»o«[ t<f99x% ^ora^l od^ to ^maq 

^o^ ft«v ftil ^j?£l^ 00^ crtftO^^ ;rX «i8i»<UKj9N >o;t XX«a et a^iTx^ «•▼• ^o^ 

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jfiwe a*tti^iiXAXg ttcit ame^^^ $1 ci»7sveH ^saXA'ssirali ot xtisl a4^ to 

taiflt SMiU XXea cJ s^^^Ttl »i»w oiti» a-TfoJo^^ la^xorts »^»*f artaxi.? ijHii taXitf 

ia^ta^ai o^ ;ran:Xt a^ ib^ luuKoXaO 4^A4t e^an ai ftaX^a«8«wp axiiT Ana 

anafltf tA^i 9%jiQ aidi al *sn^'^ir^ ^^ aunt tx^^^B tea aa&& tt ^i»siMn»M 

'^alll»9i, to :r»«qaa^q a a«w ««!(a4cr i»ti^ a&isaXeC ^iGf aoi^aa^aoa x<u bay 

0^ aitortw aia/itfiaM ,!>.>! BauX> oi aooiv»^er tai> a^i nc a«ir«oa<f v^iAt «ui;^ 

to aoiifoaqaaX lu :rilsjuc£i^ «^ ifAfi^ b*isi» axi iioliiv oi «ia;r)aX s aamaXoO 

aovoxlf ^aoM aanXs t^&nuiAm^nq »IiiU « aj9V a^il ^scisr ^a aaaioaiq •tit 

woii »aa ion cJb Z tX^Uiat'^'' S^ «IXat liSnu a»o4 al j(o«a 9<( iea AltsoM 

^Q9A9i40 oi aixTuia'z eaiiodT ^sirt^ XX^oii Jbsxia^IcpiODaa ad oao ^^aXsitxaM 

xl9Xif¥ ^Ti^oa^df^A t^ar aiaw xioMw ^a/iqA's.ii^^o^r axi? ifa AsjLqoX avisxl I 

axiif nX ff^Ai lot beoa avaxi iii;siia aio'^ ^altaisi'i' ,9«f off bolljajr; uc\ 



12 

as they &re stated In the letter that It was Markhela and not Ooleman 

who was trying to interest Mrs, Thome. Marithelra testified that 

he Bet Coleman May let, 1939, some seven or eight tiiaea up to June J.Oth, 

and that the last tine that he saw him was in the latter part of 

June, 1939, Markheia also testified that Coleman did not have any 

further dealings with hia after the middle of July, 19S9» Marlthelffl 

was first called as a witness by the plaintiff and later by the 

defendants, and it would appear from the evidence thst so far as 

the plaintiff was concerned Markheim was a hostile witness* Markheim 

told Coleman he would lUce to tallc; to the owners as he thought he 

would get a better price than by having the broker go back and forth. 

And so it is quite apoarent why Allen wee substituted as the broker* 

Plaintiff also calls to our attention that the case of 

Rigdon V. More,. 226 111. 382, is cited In Hasar & Johnson v. Sourline:. 

176 111, %>p. 349, where at page 351, the court saidJ 

"T^ie mere fact that negotiations may have been discontinued 
for a short time will not defeat a recovery. In order to constitute 
an abandonment the evirience must not only show the breaking off of 
the negotiations, but also an abandonment of all intention by the 
purchaser of purchasing the orooerty*" 

However, it is of course a well known proposition reasonable 

In theory that a broker is not entitled to a commission if another 

broker is the procuring cause of the <^ale, and in support of this 

suggestion defendants have cited Crowe v» Clsinor Apartments^ Inc ^. 

315 111, App, 492, and it appears from the abstract opieaion la that 

ease that one Miller, a real estate broker, in February, 1940^ 

advertised the Elsinor building for sale and one Marhoefer answered 

the advertisement. Miller took him through the building and in March, 

1940, procured an offer of (t37,000 or $39,000, all cash. He introduced 

Marhoefer to Joy, a representative of the sellers, who indicated that 

the sellers would not accept less than "^41,500,, Consequently no 

deal >ras then made* Marhoefer subsequently through his own broker 

Steam, in July, 1940, contracted for the ourchase of the i^lslnor 

Building at ^40,500, and the sale was thereafter consummated* In 



tx 

,xf3-04 ©KU'. ^Sfflld" Jxlaiff 10 i3»-«t«f «j9ca teeex ,J6I xm nRm»IoO itttm «il 

1(»^^<XA<^ iB^iml 0xi;f el •4(iv elil vds ed .tiPiiiT ssi^r -i&Al f^m f&iit ba* 

XnA •vsiti ton bib aanidicO *sd* i)ii'iJtr»©tf ml» m«Aat*M ,esej ^eni/L 

•le^j^efcr 'cdl^ atf I>9$u^i^(i«rjir8 3;»w jii«Xi>\ ^fiw faBxaaqn ^iltfn ti }i oa bnk 
to 98*0 erf* *«il;r aoliMttB luc r^e ceXg mtniaX*! 

tbiaa ttaao ©dtf ,XSS ©g^c *« <n«iiw ^Qy^; i,qqA ,XXI aVX 

l>©jjai;tnepsl£) nsed tvmal \«0 9iseXJ«iJo5jen i&skt toAt rj«JH wff* 
©;ruJiJ8nco 0^ tabno til ,iia»vooet a Js9t»5 *on Illv »aitf :r'iorla a lot 

©£{;J lEcf nolJn8;rfiX ILb to Saemnobtiiiiisi a» o«Is iv<S ,iancl*«X#08en •£!? 

eXcr«i}08ja«'i flol;Jrieoqote( tsumea. XX»w /s j»«iiioo ^o si ^i ^i«7!»^oK 

ttdtoAA ti aoIsAittnod rt ot JbeX^itnt ^cn «X ia:Hci^cf .« *iEUl;t \ii««Af ai 
sXfCf to ;r<ioq«Tii8 ai Baa ««X«s. 9rf# 1<» »«i;Qn sni^xuoorfcr 9Ai ai isjfo^sf 

tfiiiit fit noiAigo 9t>s.tiBd» «il* jw»tt ttiueaors ti Jbs« ^90^ .q^A ,XXX flXS 

«Olk@X t'^i.^ii'sd!?^ nX ,'7e:ifo^cf «;l«#s» Xai^ m ,ii»XXiN •ae JUuft •••« 

foenmans •!t©l[eoi:JiaM •no brm »Xee to7 %Btb I lud •reciiXct ajlt A»sit«i»T69 

tdo<!iiiM at ban •gnibXlv^i %iii A^Oi^iAS nlA ioof leXXlM ^taAfflati^tsTba •d* 

^out)ci;f«X »H .rtfifio XXfi ,000,85^ nio OOO^fS^ lo uetlo aa £anno«rtt<| ,0^9X 

*«il;r Jle>^ftGiXjfli odv ^steXXea fiff;r tc dVi;f«:rnaa9'x^r*^ a ,to^ e>^ 'rat^o^AM 

Cfl tXJndwjpsaaoO ,008, Xi^:- ajeri* a«<»X *q80oa i^n bltsov aisXXaa ari» 

teioiia jdwo fii£i dguotrfsr xX^nejjf^eacfva nataoiHAM »9bMR a^AS acv Xoal^ 

tonUI^ 9A9 \o aaAilavirq oxijr ^vot fts^oaT^fnoa ,OJ^ex ^^Lul* at ^avM^B 

nl ^b%tmuiu&aoo leJlAoierl} «aw aXAa axil J&oa ,009,0^1 tm i^ntbltM^ 



13 

that case the court said in its opinion: 

'*We believe the plaintiff aay have interested Marhoefer 
In the first Inetance, but i-fe aleo believe that that interest waned 
and plaintiff's efforts did not effect or bring about the sale, and 
only the person whose efforts did so is entitled to the oommigsion. 
White V, Sellmyer^ 157 111, App,, 435, To confirm our view, we 
eofflpare the efforts of the brokers. In addition to showing the 
Marhoefere the building, olaintiff had conferences and conversations 
with Marhoefer, and Joy furnished a statement of income and expenses 
to Marhoefer and told him he could get a commitment for a 128,000 
mortgage on the prooerty if the deal was made. It geemg that nothing 
further was done by him. * *' *■ He did not submit a written offer 
*■ * * either on behalf of »%rhoefer or anyone else. At Marhoefer* a 
request, Steam appraised the property, arranged the pale of 
Marhoefer' s three-flat building, the aortgage on the property to be 
purchased, and p. personal loan from the Prairie State Bank, all of 
which enabled Marhoefer, with 5,000 to 6,000 in the bank, to 
raise the s40, 500 necessary for the T5urchase, He also handled the 
details of the written offer to ourchase. The finding of the 
Municit)al Court that Miller was the uroouring crUv«3e of the f?ale ie 
clearly against the weight of the evidence, Clatt v, .Andersorif 
267 111, App, 630, The defendant complains that Joy resisted his 
offers of a Durchase below Hi, 500, and later sold through Stearn 
at S40, 500, This complaint suggests only ths.t Stearn succeeded 
in coapromlslng where Miller had failed," 

The oa8« of Mc&uire v, flarlson. 61 111, App, 295, was suggested 
on like questions, and further in support of the suggestion of the 
defendant is the case of Bums v, Sullivan, 192 111* App, 127, also 
Reed V . yrenohf 215 111, App, 669, and Comerford v, Baloueekf 237 111* 
App, 633« 

It is suggested with some force by the defendant that if it 
be supposed in the case at bar the situation were reversed and the 
sellers had paid a commiesion to Coleman there can be no question 
that Allen could ifiimediately sue for and recover a commission for his 
part in effecting the ?ale to Markhelm» Allen's case in such a 
situation could have only one result - - he would recover a full 
commission. Re oould sho# his employment by some of the defendants; 
he oould show sir months' effort in selling the f?^rm; he oould show 
three months of steady work with the ultimate purchaser, the bringing 
in of verious offers and the negotiation and preliminary preparation 
of the actual contract^ 

So from the facts as they appear in the suggestions of the 
defendants, the orocuring CRUse of this sale is that cause in which 






jnixi: 



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61 



tfiQiniqo e^i al bJLmi .lu^jas ^a^T aaao i»Ai 









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14 

& natursd and continued sequenoe, unbroken by any new Independent or 
Intervening cause produced the event without which the sale would 
not hAve occurred, and oases are cited in support of this suggestion* 

There is aanother interesting suggestion offered by the 
defendants, that where a broker is attempting to sell to two persons 
jointly, the fact that one of the two persons subsequently buys does 
not of itself entitle the broker to oommissionsj and it would appear 
from plaintiff's evidence, and particularly his letter of June 21 to 
Markheira, to be clearly shown that Ooleman never expected to interest 
Markheim in the purchase of the Empire Stock Farm, but that the most 
he ever had in mind was working out a deal to sell Markheim a part 
of the farm and to sell ^aritheim's legal client the other part of 
the farm. Stein* s testimony definitely states that it was Mrs, Thome's 
name which Ooleman gave him as a prospect and not Markheim's, and 
that it was for her ^oleman desired the pictures of the farm. As 
Markheim was Mrs, Thome's attorney, Coleman's sending the pictures 
to Markheim is not inconsistent with the priaaz*y intent to sell 
Mrs, Thome, particularly in view of the wording of Coleman's letter 
of June 21, 1939. Cited in support of the orooosition thus offered 
by the defendants are the cases of Clark v, Messier. 50 111, App, 
550, and Murawska v, Boeger . 219 111, App, 241, 

Therefore under the facts as they t-^ere presented to the 
Jury it is the contention that, since the evidence in this case 
wholly fails to show that the plaintiff was the procuring cause of 
the sale, the verdict should have been (directed for the defendant, 

Zt is further contended by the defendants that a Judgment 
against the defendants Philip D, Block and Leopold £, Block, as 
trustees, in a court of law is clearly erroneous, and, since the 
beneficiaries of the trust were not the owners of the property, there 
is no evidence to support the verdict or Judgment against them. It 
appears that nlaintiff Coleman's attorney definitely indicated that 
he was suing Leopold E, Block and Phfilip D, Bftock as trustees and 



<r 



•xe ittBbsu>q9Mal won ipu y^ n&sio^^fm ^ocnQup^a b9untinot> &ne iMfUiima a 

Yseqqil J»i&ov jTi fi^iXa (snoi««iiiiii«i> o^ t«3ijoncf sol:; eljTi^jii* lilsft^i l9 i^«A 
c* IS eflirt to ir^^tftf fi« lex's gtJsf ©/#•««<? Aft* tPOfi©l»l«» s'tti^fljUIq moitt 

Jac» •£» i-ftii* Jtfd ,ff^.a'5 ^9€>tt «'sicf»3i ■s-iiW Ic? ♦««il<w«m %Ai Hi «i»d*i»M 

tc ^di9 •di *a«il» iaseii a'aiisiisl'sa^^ iX#s oJ feiifl an,*?! »d^ to 

ba& ^Q^atntL^tstM' ton 6ae io9qB( v$:g nBAoXeD xiot^ •>«■ 

«A ,iEisl *:ii;? lo B9*wi&lc 9dt bvxi^nib nB&»lo^ turi •xot saw Ji JaxI* 

ars'Kf;}^&ia ^Ai ■gaibn»9 e'a««»X©D <\8«n:ot^;fs «*»fnod*i' ,8^* anv atl»iij[t«K 

XI«e ©^ ta^inl x'^mSiiiq **!# dtiv ;rn«*»i«fiojwti ton «1 «l»rijfi«M c? 

•i»JJ©X s*iU5«9XcD lo salute* •itl' to wair ni t-fai&Xaolt»i«^ ,»t«oilT ,»ifK 

5®i9tto auxW aol;rieoct«wrc efW to ti^mvm ni &«^iO ,(K«QX ^XS'^miT. lo 

•qqA #XXI OC .giiXaaeg ,v ^rtgJtO to se«iBe •xl* »ia aJxtaftnatafi ari* \d 

♦I^-S' . .rxi §XS ,^ft3n»e^: .v ja ^avirtifM bna ,0W 

f»xl5^ o? j&«tfi!«B»^Q »^*w '^©xi? ftii Si^taat til* t^bnu •totfi«£n 

9e«o sM* nJt ©onefelv© erf* »»«iB ^t^J ooi#n?iefflo© ©rW ai #1 'riArt 
to 9i3irAo sninuooiq »iit «a?? tti^nlflXcr »^J JAiii wojEia o;? aXlat x-^Jt<"*w 
»ir/tst)n«tafi »ilJ not *sJoeii? Rfsscf STjui bXwciia #©l^aT »iIJ «c»X«e »xfi 
»««»s£n;J, fi jf-arit sJofiJ&notef' ©riy ijtf fetJ^uecTnoo isd^fnjut ai il 

«« ^itooXS 4^ £)Xoqo9J bttB iooIM JO qLllA*i niciAbanImb 9At ^aaiiiaa 

e/(* «9iiie jfcna ^saoeiicm:© X-fi»*-C^ ••'^ '♦'«X to J^woo a nl ,aa»?etnrJ 

oaaH;^ ,X*i«go^q eriJ to aianwo axiJ Jon oiav Jaancr arij to aaiialoitanacf 

il «a(9il^ jQniA^ii ;fneffi^ift '^^ JoiMeT 9ii^ ^occua e;f aona&lva on al 

JbiJJ AaJjsoifinl \L9lt Lai'i^h xtavtQtia e'cAiaaXoO ttiJnijBXa *«il* %*i.AtiGri& 

£)nji saafam^ as jLaoiS «Q QXIt<:il &aa j(ooX9 .3 MoooeJ anlua bjiv ad 



15 

not individually. It is called to our attention that the trial 

court stated that it would not permit a Judgment to be entered in 

this prooetding against Philip D. Block end Leopold &, Block 

individually. The Judgment >?as entered against these two parties 

as trustees. Attention la called to the case of Equitable Trust Co . 

V, Taylor. 330 111. 42, There, as appears from the suggestions 

that were offered, Taylor, one of three trustees, executed a 

promissory note and suit was subsequently brought on the note against 

the three trustees, but vas later dismissed as to all but Taylor, 

A Judgment was entered against Taylor individually, and the Aopellate 

Court's reversal of this Judgment was affirmed by the Supreme Court, 

the court saying) 

H ♦ * * Though he describes himself as trustee, he is 
personally liable for its bresoh [of contract], and a personal 
Judgment is the only Judgment which can be rendered against him« 
An action against a trustee in his representative capacity is 
unknown to a court of law, for the law takes no cognizance of the 
trust relation, ( .ahl v. Schmidt. 307 111. 331), If a trustee 
makes a contract in his ovn name for the benefit of the trust 
estate he is liable on it personally and not in his representative 
capacity, whether he describes himself as trustee or not,** 

Attention is called to the record in the case at bar, and 
It is stated that from an examination of it it is oleiir that plain- 
tiff's counsel was seeking no remedy against the trustees individually, 
and that the court was in error in permitting the suit to continue 
against Leopold '^^ Block and Philip ^, Block, as trustees, v^hen 
defendants* counsel asked directed verdicts or dismissals as to the 
separate defendants, the trial court exoressly stated, "Philip D, 
Block and Leopold Block are not sued individually**. And the court 
said in reply to the suggestions that were offered that " ■w^ * ♦ the 
amended complaint does not sue them individually, they are sued as 
trustees of this estate ♦ » « I would not give the Jux^r the forms or 
receive a verdict directed to them individually,*' Then the question 
is raised as to what the evidence shows as against the beneficiaries, 
and it is stated that the evidence clearly shows that the beneficiaries 



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,^IXjb{/&>iYi£>aX »«9^'3ii^t dfU i'AiiiM^m \f)9m^i on ^nijieaB asv Xaam/co 8*111^ 

«i/al^no& o;t ^ius sdlsr ^littwrtm at t&m^ at asv #1000 9^ iadt baa 

n9t& ^^<ik9^ aati ««. ^»t^M -./j- qilMH, Sas jf»9i@ .-^ i^XodosJ fanijBsa 

#*»«» iwir bsiA ^^xllmiilvibnl £^ti/« .^on tna ioolS fcXo<i©a4 J&iia iCmII 
«rl:t " tatii bpi^tlto 9tfsy SMt »hq19s9^'^m 9flt ot xJ.c9i at bim» 

to aawot eitt t^wt ©jtM «vi3 *os Jb^jBO" >Q.^Bf alxJ* to ^vBl^tnt 

r ^iti\i:ditfia»d 9d3 taoiiisfl a& svoriis •oflftj&irn ttsii Sstbt o;r aa i>taiat ai 
%Blt»ii3ltBa94 e£icr vt«4^ awofila ^Xia«Io tonaJ^iva 9di i&Ai b9i»S9i Bt tt bn^ 



16 

Marjoria Block Stoin and Hel«n H, Block took no oart In the sale of 
the property, did not enter into the contract under which the sale 
was oonfiummated and merely delivered qult-olalm deeds for no taxable 
consideration, at the request of the t^urchaser, in order to obviate 
any title cueetions which might arise, since the estate of ^fflanuel J, 
Block had not been closed at the tlae of the conveyance, in case the 
heirs of i!4Banuel J. Block should take any steps to attack or set 
aside the will of l^manuel J» Sloekf and thus claim an interest outside 
of the will. 

There are further questions that are called to our attention, 
but ve are of the opinion that the Jury erred In returning a verdict 
for the plaintiff. 

We respectfully sutMSit that on the basis of the record in 
this case the plaintiff wholly failed to establish that he was the 
procuring cause of the eale of the S^vpire stock Farm to Kerry Markheim* 
Therefore, the Judgment for the plaintiff in this action for !&,000 
is reversed and remanded with directions to the trial court to enter 
Judgment for the defendant with costs. 

We find that there was no question for the Jury to pass 

upon and that the trial court was in error in refusing to direct a 

verdict for the defendant at the close of plaintiff* s ease and at 

the close of all the evidence, 

JUDGMENT R1;:V RS£D AND REMANDED 
WITH DIRECTIONS, 

•tHOtK, ?. J, A»D ULEX, J, CONCUR. 



« 



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nojrr.' Cj faxes? X«lii tiiij ©J itfmltafrslfc ^i:w fe*&n.«»«^ &fi« t^sf^iit ■! 
^, ft^i^q 0^ Y^ul m? tot ncti^ftiiifp oer nrnt «n«^ JM^sl Built •w 

«<rdAtt;)Zir» Mil. II« to i^eoXo «itf 



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4S394 

SEYMOUR RISGHALL, doing business 
as RISGHALL* fiL 



R, A R, HOSXSl^ GOMPAfirY, a corporation, 




HonoBfeble frs.nk M, Padden, 
Jtopellant» ) Jjndge p|'esiding» .-7 



MR, JUSTICE HEBEL DELIVERiSD THE OPINION OF '. it. 



36 



This is an appeal from a judgment entered upon verdict 
for tha plaintiff in a forcible entry and detainer suit for poesesalon 
of the premises described in the complaint as "a portion of the 
store premises, 226 West Adams Street^ designated as office space". 

Plaintiff and defendant are lessees of adjoining stores 
at 226 and 228 West Adams Street respectively, each holding a lease 
from their common lesf^or, which describes the premises demised to 
plaintiff as "the store at 226 West Adams Street" and to the defendant 
as "the store at 228 West Adams Street", The premises of which 
possession is sought in this suit consist of a small office apprexi- 
mately 5 by 6 feet in area, accessible only from the defendant's 
store, and separated from the olaintiff's store by partition walls 
extending from floor to ceiling. It would appear from statements in 
the briefs that the space involved is a small area entirely within 
the original boundary lines or four vralls of the store premises at 
226 West Adams Street, The original lease from the Franklin-^ams 
Co« to the defendant was for both stores No. 226 and No, 228, for a 
term expiring December 31, 1941, Under this lease, defendant occupied 
No« 228 and the R. h R, Dress Go,, of which plaintiff was president, 
occupied No, 226 by a sublease. During the term of this original 
lease, an opening was made in the partition wall separating the two 
stores and an area, entirely within No, 226, was set aside for office 






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a&lllc lol: obXaA ttf% aav ,88S ,oiS riiijiriv ji^tlitt* ««an« oa 6iu aano^Ts 



2 

purposes and used jointly by the tvo pompanles* On February 1, 1941, 
the defendant subleased to the H» ^ H« Dress Co, the store premises 
No» 226 w#st Adams Street by lease expiring on the same day as the 
headlegse to the defendant for both stores. By paragraph 21st of 
this subleasei the Dress Company agreed that, in the event it obtained 
a lease from the building owner for both stores, No, 226 end No, 228, 
for a term after December 31, 1941, the Dress Company would sublease 
to the defendant the store No, 228 for a tern oo-extenslve with 
the period of the new headlease. This arrangement did not materialise 
and in lieu thereof the defendant, on October 82, 1941, procured a 
lease directly from the building owner, for the store No* 228, for 
a period of one year commencing January 1, 1942, and ending December 
31, 1942« Plaintiff, likewise procured, from the building owner, a 
lease for the store No, 226, on October 17, 1941, for a term of two 
years, commencing January 1, 1942, amd terminating December 31, 1943, 
Neither of these leases referred to the office space, presently in 
dispute, or made any provision in relation thereto. 

It is the plaintiff's theory that the plaintiff and defendant 
by their separate leases were entitled to the space within the original 
boundary lines or walls of their respective stores. No, 226 and No* 
228, and that upon the termination of the original headlease, which 
demised No, 226 and No, 226, on December 31, 1941| and on the termina- 
tion of the sublease for the premises No, 226^ on the same date, 
December 31, 1941, the lolalntiff and the defendant abandoned any previous 
arrangement between them relating to their respective store premlsesi 
By separate negotiation, for their respective stores, with their 
landlord, plaintiff for a period of two years, defendant for a period 
of one year, the evident intent of the parties was that the space 
within the original boundary lines of e£.ch of the stores was the space 
contemplated in each of the new leases, and that therefore the plaintiff 



3 

lo Jais Jl<j«*I|^a1so X*^ »8?»no*a il;fo<^ not tnAftasteb Ml^ of eB«*Ii>;s«cI 

»89S .qH &tL» (I^S *qH ,9«^o*9 jE{;fcaf «fo*t i*aw© sniJWiiftf »4# liortl: ttsael a 

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tti;tAl«Xq ad^t a^otaiariJ ^sii^ Mii ^AaaaeX van ai<^ to ddj)9 ni bai^aXqare^noo 



3 

wae entitled to repossession of the space within the original boundary 

lines of the store No, 226, after Peoember 31, 1941„ 

The diBDUted space is located entirely within the store at 
No, 226 and is presently partitioned, although defendant in his brief 
describes this space as being accessible only through his store. Such 
stateoent is not correct. It is accessible only to defendant's store 
in the sense that a door between the disputed space and the main space 
of 226 is presently locked or nailed, 

Frofli the argument offered by the parties it is suggested that 
it has been held that where nremisee are described in a lease by the 
n\ifflbers which are otrer the outside door leading onto a street a pre- 
suoption arises that such description does not include a part of the 
building which is not accessible by the door to which the number is 
affixed, and a case is cited entitled Houghton v. Moore. 141 Mas8« 437, 
which involved a building originally divided by a solid wall from 
cellar to roof. Before granting a lease in which the leased premises 
were described by street nusber, the lessor removed the partition wall 
on the first floor. The partition remained in place on the upper 
floors, and it vas held that the separate character of the two parts 
of the building above the first story remained unimpaired and that the 
lease of the premises by street number did not include the upper stories 
of the other part of the building which were accessible only fro« 
another street number. The court said th&t when a house or building 
is described in a lease by a number over the outside doors on a street, 
the inference is that the building is intended, access to which is had 
by those doors from that street number. 

Attention is also called to Tiffany on Landlord and Tenant, 

(1910) Vol, 1, page 270, where it is seidS 

"Such a description (by street number) does not, prima 
facie at least, include a part of the building which is not accessible 
by the door to which the number is affixed^" 

In Underbill on Landlord and Tp>nant , (1909) Vol, 1, Seo» 

273, it is saidt 



s 

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«t»daarn ir««<x;ra ;rai(9 ««%! aveoA aaoii^ ttT 

ifiUftt'^ 'N'* iw«4feflfei no i£fiAll4f o^ ^9XXa« esXit i«i AoitnaiT^A 

I61aa ai ^X o«i»f^ ,OVS ^a« \l. •XoV (0X9X) 

?;- «fijliq ,;tcc 8«9of-' itadex/n ;f*e*t;ra x<l) xtcX*g^s*aaife « xtare" 

•Xcflaaaooa Jen ai xioj^riw gnlMifd oxlJ to iiisq a a&Bloni ,taaaX ^« •!•«) 

"iJ&exXttA ai isifBtm eil} sioiifw 0^ 'vooft Mf^ ^tf 

♦oae ,1 .XoV (&oej:) .?ri<><i«>T tasi !noll>tt&S no IXiJHs&qU nl 

ii>iaa ai «i «S7S 



"Vvhere the premises are described in a Isaee by the numbers 
which are over the outside door opening on a street, the oresumotion, 
which is always rebuttable, la that the building Ib meant, access 
to which maj b« had from the street by means of these doors," 

The plaintiff, however, calls our attention to the cae© of 

Houghton V, Moore. 141 Mass, 437, as not being in point, the dispute 

m that case being between the landlord and tenant, whereas in our 

case the dispute Is between two tenants of a coouaon landlord, the 

premises leased being described as "the building No. 63 and Ko. 65 

Endioott Street*" At the time of leasing the landlord was the owner 

of two adjoining parcels of land, one being in the rear of the other, 

A briolL building had been erected, prior to the lease, on both parcels, 

three stories in height, with a briclt partition wall on the dividing 

line between the two parcels, extending from the cellar to the roof 

"without door, pateagtway or other opening thereln"# The court said: 

"the foregoing facte in relation to the existence of said partition 
wall and the making of «?aid opening therein, ^f ere known to the 
plaintiff before the execution of said lease," 

The plaintiff occupied the entire ground floor and the cellar suEid 

all of the rooms above the ground floor on the ICndlcott Street side 

of the partition wall, but did not occupy the rooms on the other side 

of the partition wall on Morton Street^ The court again saldl 

"the inference is unavoidable that it v^as so constructed that the 
different parts of the building might be separately occupied. Such 
a partition wall makes the structure two tenements for the purposes 
of occupation as distinctly as if they had not been built in one 
block and as parts of one structure, '^ 

In order to aid in asserting the true situation as well as 
the Intent of the parties we can consider the evidence as the Jury 
undoubtedly understood it. Originally the store was divided by a 
solid partition wall, and this was the fact at the time of making the 
original leaee for both stores to the defendant company. The defendant, 
having subleased to r-lalntiff*8 predecessor, of which plaintiff was 
president, one of the two stores, namely. No, 226, an opening was 
broken through the partition wall, between the two stores, for con- 
venience and, for a period of time, the defendant and plaintiff's 



8". U'l? %9 *6.^eX a til 



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5 

predecesBor used e saall portion of the space, within No« 226| 
which wae partitioned, as a Joint office* ^en, for reasons of 
their own, namely, the dissolution of their Joint interest, the 
space was divided between them, it obviously could have been so 
partitioned only for the remaining period of the then existing leases, 
which expired December 31, 1941, Thereafter, each of the parties, 
separately, negotiated new leases, defendant for a period of one 
year for Mo, 228, and plaintiff for a period of two years for No# 226. 
Troa the authorities which were cited, when the plaintiff leased 
the premises No, 226 for a period of two years cofflmencing January 1, 
1942 and terminating December 31, 1943, such lease included the 
space of the store that wae designated as No, 226, and all of the 
space in the building, which Included the so-called "office space* 
in the premises known as No, 226, 

It is suggested that it Is not a Question of law as to 
whether the lease for the store No, 228 included the disputed space* 
It is purely a factual situation, which the Jury determined from the 
evidence, the physftoal examination of the premises and their conclusion 
as to what the parties themselves obviously intended. It appears 
that the trial court during the course of the trial suggested and 
permitted the Jury to view and examine the premises, and by this 
examination the Jury undoubtedly better interpreted the testimony 
offered by both parties in the light of reality. Obviously the trial 
court concurred in the conclusion of the Jury for it denied defendant's 
motion for a new trial and for Judgment notwithstanding the verdict. 
It is urged by the plaintiff that they are unable to agree with the 
defendant in its statement to the effect that the record is barren 
of evidence to support the verdict. Defendant in hie brief admits 
tne conversation between Reeder, defendant's president, and tkilniok, 
the building manager, to the effect that the defendant would be 
required to make a separate agreement with plaintiff for the office 



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6 

space within No, 226, and it is urged that this confirme the fact that 
neither the defendant nor the building owner contemplated or presumed 
thfet the disputed space was included In the lease to the defendant 
for No, 228, %)parently there was & mierepresentc-tion of fact made 
to Solniok by Reeder, who informed him that there was an agreement 
between the defendant and the plaintiff. There is no dieoute as to 
how the opening was made in the partition wall between the two stores 
and the Joint use of the disputed space nor of the separate negotiations 
by each of the parties for their respective stores. The defendant 
contended that the plaintiff made no demand for the space before executing 
his present lease, and in reply the olaintiff said that obviously he 
could not made such a demand before procuring his lease, because he 
did not have the right to do so until he had procured the direct lease 
from the building owner for a term coiimenclng January 1, 1942, but, 
having procured his lease in October, 1941, he made his demand on 
Heeder in December, and it is conceded by olaintiff that in December he 
gave defendant permissive use of the soace until the spring of 1942, 
when he informed Reeder he would require its surrender* 

It is thus evident that there was a conflict in the evidence 
of plaintiff and that of defendant's witness t^eeder, rather than a 
record barren of evidence. There being e conflict in the evidence, the 
Jury's verdict is entitled to great 'weight, and it oannot be said here 
that there is no evidence to support the verdict* 

After consideration of the facts and the law as applied in 
an action of this sort, we are of the opinion that the trial court 
was Justified in entering the Judgment on the verdict in this case* 
The Judgment is affirmed* 

AFFIRMED, 

BURKE, P.J, AND KILEY, J, CONCUR. 



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4200S 

LOOP DISCOUNT CORPORATION- a corooratlon, ) APPEAL TWK 
Plaintiff - Appellant, j Li^..L_- 

JOSEPH W, SCHULMAN and BESSIE SCHULMAK, 
his wife, 

Cefendante •• AppelleeSii 

ON REHEARIN& . ^ 

lOU JUSTICE KILEY DELIVERED THE OPINION OP/THE COURT, 

Thii is an action to foreclose a chattel mortgage wherein 

plaintiff claiaed "at least" #1,094,50 and costs from defendant, but 

the master found and the chancellor decreed that $384,50 was the 

aaount due. The question is whether the decree it against the 

manifest weight of the evidence. Plaintiff urges that this court, 

being IB as good a position as the trial court to pass on evidence 

taken before a master, has power to set. aside erroneous findings, 

review evidence and enter proper orders* 

Sohulman borrowed i^360,00 from Rosefl^ld in October, 1936, 

and in the following December 450,00, executing a note and chattel 

mortgage as security. January 6, 1937, he executed a note and a 

mortgage in another loan transaction with Rosefield involving i£3000.00. 

He aa de certain payments to Rosefield from time to time and in hit 

antver and on the trial admitted owing $924»00, The master found 

that the note for ^3,000,00 and mortgage were executed and delivered 

to Rosefield January 6, 1937; that the same were extended on January 

26, 1938 to December 26, 1938 in the amount of $2,750«00; that 

Jantiary 27, 1938, Rosefield avtigned his interest in the note and 

mortgage and extension instruments to plaintiff; that Schulman hat 

made no oayments since July 6, 1938; that plaintiff corporation was 

organized and is controlled by Rosefield and that the assignment was 

made as a convenience or to circumvent defects in the execution of 

the mortgage and note; that the two prior transactions were usurious. 




♦ V 

.T^UOO 3HT\^5t; JSOIMI^O SB'S QSHaVUSC I2JI2 SDITaU; . 
Rlt)i9tiv e^glaoiB Id^^Biso s ssoldeic i^a« eus ai aiiff 

Ji«l »tfa«l>n«laJ& eotl 8;rao^- ,^90 ^X* ''Ja^dX Ja" fcaiLLsio tti^nlA.: 

driJ' saw 0S.;i^85| S&tii bt^noeJb loXXeoajs^Q sxi/ f>fm 5£urot "xa^a^ffl aift 
oxlit i^sni^j^jB el $«^8»& «4t isu^^eflv si xiGifaei .9u£) j'nfiroaui 

^^nj/o« aXikf Satis a&^'Stf ttil»ijal^ ,99ne51v« 9^? )o t^Xdw ^Taelll^MI 
9ci/i9LXv« ^0 aasq o7 dri«o9 Xsi<i:r ^xi7 ba noi;riaoq a J&eo^ >« al sniacf 
,a$£i££>nil snoano^ift sJbia* Smb &i 'xswoq ae£( ,<x8;^ajui a tfiolacf aajUit 

,,«*i«i.«fO /cftqoitq •reJn* 6«« ©oadfiiv© waivei 

»d5SX ,i©cfo*oO al bl§4^BBd-\ meil 00*.086| bafwrmocf stamlutiiit 

I^SSaHo baa sSoR a $iilii/oexe ^00t,0QH tediesoaC j^ni-HroXIol sn:T ni bam 

B ba& 9Soa a heSuo^xr ^^ ^<XjS£;fl&I> •^;riii;d9e ztt aj^s^^ica 

«00,OOOSI saivXovfli bXalteaoH sUtiv aol^o^aiu^xd m^ol lexl^ciui nX e^^rni^i^^m 

ad Ai J^HiS eni^ ci 9&1S m<stt SXftitseofi onf aSa^eii&q nict^'xao eJb a afi 

.6m/ol 'xeJaaa ®riT *00»^S^ aaiwo Bef^iwfia XjbX-iJ •AS no 6fl« navana 

Xi&tia&Z no Aa^ne^xa a-iav asusa &Ai S»ti^ ;V& tj&MnjiL £XeX7aaoH o;^ 

3bAS ;00*OdV,S| to crnoooa 9AS at 8561 ,d3 lafifawoaa o^ 8561 «8S 

Jki£i eiton 9dS al draa-xe^ni aiil £)ea;|ittBri» MeitaaoH «asex «VS x'x«iffluit» 

a«ii ajsMluAoQ S^iS illlSalAXq oS aSa9miatiaiRi aoitBa^SzB baa a^s^ioa 

afiw noX^A«xocrio& Iti^aiaXq t&tti ;86ex ,d x^^^ 900X9 a^aacixaq ofl 9bMm 

SAW (Tnona^XeaA 9dS SadS baa l>X8itaaor^ %^ fiaXion^iioo ai J^oa ^xlnasac 

lo aolSunnxB ari;f ai 8}o«l:a£> Saermtsnlo oS to aonaXnavnoo a aa abaa 

^9fjot*LU9u 9«x«v anoX;roaafla'x} i^inq ow^ adtf tail;r sa^Ton ham e^aa^noB axf;r 



2 I 

but paid and disposed of prior to tht Instant loan; that January 6, 
1957, Rosefleld executed three checks to the order of the defendants} 
one for $825*37, one for #800,37 and one for §1,375,00, The first 
bears the endorsement of the defendants, and below the endoreements 
"Pay to the order of Dearborn Finance Service" and "Dearborn Finance 
Serrloe, Leon Rosefleld"; that Leon Is the brother of Jerome Rosefleld 
and neither he nor Dearborn Finance Service had any Interest In the 
transaction and both endorsements above th&t of defendants appear to 
be m the same handwriting; that the second checlt was endorsed by 
defendants under the endorsements, "Pay to the order of Harry Reiner" 
and "Harry Welner*, the latter two appearing In the same handwriting, 
and beneath '^felner' s endorsement, the following: "Leon H, Isaacson, 
Agent for Trustee of Ingleslde Apts, "jthat there Is no explanation 
of the endorsement of the check to «einer, nor of l8a'^C8on*s Interest 
and Rosefleld testified that he did not know whether he received the 
proceeds on the cheek; that the third check was endorsed and cashed 
by the defendants; that the only proceeds of the Instant loan paid to 
defendants was |1,376»00, although they acknowledged January 29, 1938 
being Indebted to Rosefleld In the sua of 2,750,00, In which they recited 
that the Information was given to procure fx^m olalntlff Its check for 
12,760,00 to pay Rosefleld; that the acknowledgment and recital were 
not sufficient to estop defendants from claiming the defect In the 
consideration, because plaintiff was not altogether a stranger to 
the loan traneaptlon| that defendan|s paid Rosefleld on account of the 
♦1,376,00, 1990,60, leaving a balance due plaintiff of |384,80, 

In the supplemental report the master conflmed his finding 
of the balance due, "notwithstanding the admission In defendants* 
answer", because he saji It was clear from the evidence that the 
defendants had made the payments found« 

The transactions and testimony concerning them are confusing, 
A reconsideration of the record Indicates that the master's finding 



i 

t 

iB%i1t »dT ^*00^€TS ,Ii ntot «ii© &a« "fS^OOSl -xet »«« ,<PS,«S8$ lel 9flo 

atn«ffi»a<{o£>ii» exit ve£»<i &i3s «ft^nei?n»t»J& 9ii^ to ;fii9si«»^ol>n« 9£i^ m*tA94 

ttiOxnl% crtocfiji»a" jbaa ^'eelv«i©S seiiusjsi'g £ftcd>i-c»cr ic 'strfeto ndJ o? "?«<* 

«iri<r iti 7»f»'i9^i!ii xaB h^ 99l9%9^> t«&»6i'^ n*£cdruK«a loa wi i9ii9fa hMm 

b^H»M9 baa tit>9itobn» asv io«if^ fntiSi *A:f :iatlt $a(»*ifo «i^t no t&«»$dnQ 

85fX ,W x*i«irfist Aes&«XvoHaCojR Tgei^ f^ioMlt ^OO.QVS^I^ saw ti^£i«£>a»1[«f> 
AaJloen x^f^ rioiilw ni ^OO.Od^tSl to sssi »«l? al BXeilatoH o* |i»^«l><ii t|H|»rf 

•taw XaJiosi fins ffusinglielKtifliSB ailit tf.«^* ;feXail«»<sfi ^*iq o* Oa,0<lT,t| 

Bdt ni 3i:>9t«j5 nAt gKimiaXs «wt »tfrai»a»t«f> qota* oH fcr&ttitXtsn ton 

o;f laSfljTx^e A -sftrflfsisoJiA fe^ &0V fiXJaXftfa *«jtrBoe«r ,noX^jsiaftX»nco 

»C«,*GSt to tti*nl»Id »«;fi aefmXj&d s saiTssI ,0e«deCt ,OC.avC|X| 
yiXbalt iX2l Jb^iraJ^tnco tatajso ftfi^ 9tOQ«<i Xa^n^ffaXqcpya aif^ al 

*a;tfli$&««t8b at noiaalK^e «£l;t $ciIfi«;raiB$^jtv^0R'' «atfi^ «o«iAX«<f «ii$ to 

snXfinXt aH»ifaa« ail* i»Ai aataeifial Moo*" '^^''^ "" noita^ntlanotin a 



3 

of the amount due plaintiff is against the manifest weight of the 
STidenee. There is no basis for finding that the prior liens of 
$360 and ^^450 were repaid before the third loan of iss^ooaw&e made, 
The evidence elearly shove that those prior liens asountlng to $800 
were repaid from the proceeds of the $3,000 loan and the repayment 
is eyidenced hf the $800 check above described, Ibat payment in no 
wise diminished the 13,000 loan to plaintiff, but it extingtiiehed 
the separate pre-existing loans. There was no reason shown for 
deducting $825 from the $3,000 loan, nor |75 from the '$Z&0 loan, nor 
$90 fz>om the $460 loan. Allowing for these unexplained deductions, 
we find that defendant aottially borrowed $275, $360 and i2,175, or 
a total of $2,810, against which we offset the repayment of #800 and 
1990*50 (repayment found by the master), being a total of s|l,790«50, 
leaving a balance due plaintiff of $1,019,50, 

For the reasons given the decree is reversed and the 
cause Is remanded with directions to enter a decree consistent with 
the findings made here, 

R£V£RS£D AND REMANDED WITH DIRECTIONS^ 

BURKE, P«J. AND HEBEL, J, CONCUR« 



nthnit •sot (»ls "J »^^»riT .«on»51v« 

:0.« tnifccus sflsil itoi'iG sscxi^ :^i:^ s-'-^cUci iltA^lo »oflftfciT« edT 

- ■ ■. '■ ■■ , ^ 

tea ,iifcOi 0^&^' «nJ !&&t\ «"!':. ■>€•« ,i^«iX jQO^i^$ 9^tit BC-«s:t 8S8t afll*a»ft«ft 
tc ,^^^1,21 ka» OiS^ ^a'PS^ £ftwo'3E^-so^ ^Il,«ij>Jofi taAbm'f& ^aO^ bal\ •« 

rUiv tn»i$tesao» s©tOf- tne <?t tnelJf©«ijt£> liJXw fe^JEujeiBe^ sX eeueo 

•»^X9d 9bfiM ftn^aXJ&fllt exit 

.SHoiToaHia »r.; '^m 



42002 



"V. 



\ 



LOOP DISCOUNT CORP ORATI ON, \.^ Corporation, ) AI'PEAL FROM 
Plalntiff-Appellaaiitc^ 



JOSEPH I. "SCHULMAH and BESSYS SCHUL 
his wife, 

Defendants-ADoelleea, 



SUPERIOR 

COOf COUfcTY, 



) 







iCU JUSTICE KILEY DELIVERED THE OPINION OF THE COURT* 
This le an action to foreclose a chattel mortgage wherein 
plaintiff claimed "at least" ^1,094,50 and costs from defendant, 
but the master found and the chancellor decreed that $384,50 was 
the amount due. The question is whether the decree Is against 
the manifest weight of the evidence. Plaintiff urges that this 
court, being in as good a position as the trial court to pass on 
evidence taken before a master, has power to set aside erroneoufl 
findings, review evidence and enter nroper orders, 

Schulman borrowed ,350, 00 from Rosefield in October, 1936, 
and in the following December v450,00, executing a note and chattel 
mortgage as security, January 6, 1937, he executed a note and a 
mortgage in another loan transaction with Rosefield Involving 

3,000,00, He made certain payments to l?osefleld from time to time 
and in his answer and on the trial admitted owing ^;924,00, The 
master found that the note for 3,000,00 and mortgage were executed 
and delivered to Rosefield January 6, 1937; that the same were 
extended on January 26, 1938 to December 26, 1938 In the amount of 
$2,750,00; that January 27, 1938, Hosefleld assigned his interest 
in the note and mortgage and extension instruments to plaintiff; 
that Schulman has made no payments since July 5, 1938; that plain- 
tiff corporation was organized and is controlled by Rosefield and 



^ 



200S* 

^ • , •■! T"^.uooeia ^iooj 

.; <si:-- 3 2x1 

*i; • ■ ^:. . 

nXai^iiia ^gfisJioifi X«*5»^© « ®«oi&®*S'^" 

p,sw . *toXXe0fisiio vdS hna hmfct t^its-sai ^ffit tiwf 

no PBisr cJ :fii;co Isltt^xfir e* noiS'lsocr o feooj; . 

. ---- 'f : . . . ■ ' ..; -^17 - ,'i-Qntbnlt 

^ " ^r^dosToO fli bleitauan mo^l: 00,065;i<i l^swcfrrtotf n-iffiXuxloS 
IscfTBdr :t|*»cter , , rTsoetj gnJtvoIXol ©xlcf nl baa 

^nivXovni BXeileac nrJtltumBamS hjeoX 'xerid'one nl »8asJT0» 

eirX? n;J ssji.J mcTi fiXei^S" tmfaix&o nta^t'-iBO »fesE ©H .00,000,S| 

QflT ,00,^264 gnXwG ^)e*Jiatl^« Xsi^ct srfzT n -d al JbOA 

to tauoma oiii fll 85€I tO? rta^ci^osO ot 8SPX ^8S ^isx/oaX. nc JbeJbnsd- 
;r39'ssJnX aid fceo^iBEs feXeXleao;^ ,3SGX «TS ^tjii/ncT, fstit {OO.oaV^f; 
j^liifliJLBXq cj- 8;tneD50i:f3ni noXansrfxB ^s ©gfis;JTOB bn» ^Scti eri* i 
-^ntfilc J«^xl:^ j3Sex ,6 xLu'i* Qonis aiJ'nfflraiisc on sfiftrc sari afefflXwilocl *«ri.t 



2 

that the assignment was made as a convenience or to circusYent 
defects In the execution of the mortgage and. note; that the two 
prior traneactlons were usurious, but paid and disposed of prior 
to the instant loan; that January 6, 1937, Hosefleld executed 
three checks to the order of the defendants; one for ^825,37, one 
for 1800,37 and one for 11,375,00. The first bears the endorsement 
of the defendants, and below the endorsements "Pay to the order 
of Dearborn Finance Service" and "Dearborn Finance Service, Leon 
Hosefleld"; that Leon is the brother of Jerome i^eefield and 
neither he nor Dearborn Finance Service had any Interest in the 
transaction and both endorsements above that of defendants appear 
to be in the same handwriting; that the second check was endorsed 
by defendants under the endorsements, "Pay to the order of Harry 
Weiner* and "Harry Welner", the latter two appealing in the same 
handwriting, and beneath '/'elner's endorsement, the following: 
"Leon H, Isaacson, Agent for Trustee of Ingleside Apts,"; that 
there is no explanation of the endorsement of the check to Welner, 
nor of Isaacson's interest and Hosefleld testified that he did not 
know whether he received the proceeds on the check; that the third 
check was endorsed and cashed by the defendants; that the only 
proceeds of the Instant loan t>ald to defendants was tl, 375,00, 
although they acknowledged January 29, 1938 being indebted to 
Hosefleld in the sum of 2,750,00, in which they recited that the 
information was given to procure from olalntlff its check for 
c.2750,00 to pay Hosefleld; that the acknowledgment and recital were 
not sufficient to estop defendants from claiming the defect in the 
consideration, because plaintiff was not altogether a stranger to 
the loan transaction; that defendants paid Hosefleld on account of 
the ^1,375^00, 1990,50, leaving a balance due plaintiff of 1^384,50. 



"' '' c-<3jl:E> fexiB IjIjsg S'i/tf t'^tsolrtuaa stow anoiJofiafi.?.^ J noirrq 

^TS^aa©-^ to^ »i',r. j'-j' • nr tajb ad;/ to "xeMo «Ai o9 ajCosxio 9©^ft? 
3uw ?■: -xoftn© 9ri* et.9»c' ■ - »-^: -■•' ,"'\=^""-\' -ol •«« 6fU8 T5«00a$ ic" 

tsMo «ri;t ^"'- ' ' .'3;"--^T:r!>n?? ^?nj 'a-oI"^-' bfUB ,«tnftf>nel»fi 9Ai to 

nofiJ ,eoXvi'^>. ^ r?:j'?ni ; fliocfiaeCI" bam "fto.f.TTt«.g sdnjBQi'^I inocfiB©Q lo 

f)®eic.6Hi> 8(3Tf :3^!>0do ^floats ©fi;J ^'dlt \)^ali liMtttBti ecaa ari;J nl ed o:t 

(isnift ocf 3i09J{^.o od? t© t n<sm»Btoba9 «x<? to frci^snslffx© en ai 9i9At 

ioa bib 9d iedS &@lti^8©t feXaitftsefi feuis ^seisa^ni s^ncsoiWBsI to noa 

btXfii 9df iaiii pioBsio snd^ no 8J&«©o©iq «iW fievleosi ad laxiiteriv woni 

XXno «ri3^ ^BXit x^iBBta^'t9b ©il* xaf 6»il8jSo J&rm bBanobtte a«v aloorfo 

,00«SV5,X^^ 8SW «!JnsJja®t®.& od &Jtaq kboI ;Jnj3;f8fli eritf to afiee^oiq 

9iit JfeXiit feftd-Iooi \9£i:S doidv at ^00«03?,SI<| tc mvB &di al bIsitaaoH 

net ioerio nil tll^ala^la moil 9ia&otq ot nevi^ »«w floX^aoiotni 

siev l&ilop'i biiQ ifnciB^alwonafojB aitf ^.jriit ;iil8ltoto^ t«q o* 00»08V2| 

©do tti Joctefe erfJ aclmlalo fleoit "9;fn£&ii©t8£i coJsa o;?' ta»loXttHi *ofl 

v^^OttiJa s *i©rf?6goJI.Q Jon ssvr Itliatilq saujBO^d ,noi*BT9£)Ienoo 

to 3^aj»odo« no l>Xeit©«ofI feieq a;taB6ii»'i9& itsiW^ [[lolioAsnaii naoX silJ 

.oe«*8S# to ttXJfllBXq ojuJo eonjaXsCf e sflXv?sX ,oa,OC94 tOO^S?5tXl? 9di 



3 

In the si^plemental report the master confirmed his 
finding of th* balance due, "notwithstanding the admission in 
defendants' answer", because it was clear from the evidence that 
the defendants had made the payments found. 

The master's findings have pierced the maze of vague 
statements and contradictions of the various parties, and arrived 
at the correct conclusions. It is clear from the evidence that 
Schulmans borrowed $350,00 and 1460,00, for which they paid usurious 
rates. The third loan of 3,000,00, included the two prior loans 
amounting to $800,00, so that the net to defendants on January 6, 
1937, should have been 12,200,00* Thus, we account for the i#800,00 
check, especially in view of Hosefield's testimony that he received 
part of it and nlaintiff received part of It, for the evidence is 
that the first loan was made from i^sefield, and the second from 
plaintiff. Defendants did not receive, however, !iii2, 200*00 of the 
third loan. Another check of ^^825, 00, variously endorsed to parties 
seemingly without interest, was withheld from the Schulmans and 
accordingly, they received but 11,3254 00, The master found there 
had been paid ^990,50, which sum apparently plaintiff agrees was 
repaid. Simple subtraction, therefore, leads to the truthful 
balance found by the master. The master saw the witnesses and 
heard their testimony and, while his findings are not given the 
same weight as the verdict of a Jury or the decision of a chancellor 
who has had the eaae opportunity as the master, yet the latter^ s 
findings are entitled to due veight on review and we are not 
Justified in disturbing the findings unless they are manifestly 
against the weight of the evidence, Pasedach v, Auwp 364 111, 491, 

This is a foreclosure proceeding in equity. In our 
opinion the master conducted his hearings in a manner designed to 
arrive at the truth. He accomplished his objective despite 



fi-^r'f ^'jif?:!' .?7~ ftrf.^ wf;t ._ dii/softd 4''ia'^njs U^A«i>a«^Q-'-' 

j3 X'xawfi^*'^' "'•■ ^trisoflslsfi ©# *en ft- t cTsil^J ot tOO,OOQ§ oS 'inliniioaA 

81 doael)iT9 ©xi? lot t*! lo ;fiaq fiSTls.-.;-- iial&lq ba& ^t lo Ji«q 

asiJisq oi 6««ic6fle lElax/oiisv ,00 #5' — --.. .aboX fitlxicr 

6cs 8a«oX«jEio5 9xlJ flBCJl -&Xeridd'lw s.r" ^jse-^f&onx JtoxiJiv xXsnXaiese 

9^9d:S Jbnxfolt lerfajsai srfr »00«SS6,X^ ;fMC Sevi©o«Tc x^^i' t'^-^S"-t^''<5oo.s 

fifla a8aa«n;fiw ©r sJa-ifii '; , ^taajB eri5 ^cf bauot sonaXacf 

toXXoonsdo & 5o nolsXoei) sriJ ^o '^^u[, s "io Joiner sri^ a^ iii^t^M mmBB 
a^sJclfiX 9fIJ ;t9x; ^1eiB&m 9d:t sb yi^flm/Jiccqc ssasn «At bad tad otfn 
*on 9ia ev fcaa w©Xv®i no tsi^lfi belil^n^ eia aafllbnlt 

'!gX;fae'3:liiaffl eis x®^!^ aaaXfui esniijnXl Silu ■^at<S*iutBlb ai b9lHSaul 
i^lQi' *XXI r^35 .,yx f-A. ,v rfop/i^a^'i ♦©onefcivs ©riJ ^o J^sisw eri;t ;}anlBs« 
tvo al .TjJXwpd nl sinUbasociq aitiaoXoeiol a ai alaT 
o:f ^eaglseX) letut&m a nl a^niidsii slxi be^toubaeo telaafii arl* Aoini 
etlcBBb eyiJoetcfo aid fieilalXqinooos aH ^iiisn.^ 9At iA avlTj 



4 
lack of assistance on the part of p5.aintlff and plaintiff's 
witnesses. 

We need consider no other point. The evidence supports 
the master* s findings and the decree entered by the chancellor 
is proper and is hereby affi«Bed* 

DECREE AFFIRMED* 

BURKE, P,J, AND HEBEL, J. CONCUR, 



^bfv;?'- ^ " " "efirrsii ai £>&• lecono ai 



42139 

ELIZABETH t/EICK PETERS, 

Appellee, 



CLARA GEIHM, et tH^. 



j*^ 





Appellants, 



S2(/ia\i^P 




tm, JUSTICE KILEY DELIVEHO THE OPINIOM OF THE OOtmf, 

This is a foreclosure action irith deot^e In plaintiff's 
faTor, Defendants have appealed claiming certain credits and 
objectinf to certain allovsncea. The defendant Frederick A, G«h«, 
husband of Clara and father of Frederick, Jr., died during pendency 
of the suit. 

The aortg&ge note for i^4, 500 was made October 14, 1918, 
due in three years at 5 per cent and by endorsement October 14, 1921, 
was extended three years at 6 per cent. October 14, 1927, in default, 
though the interest was paid, the note was extended by endorsement, 
and a separate agreement, for 5 years at 6 per cent and again October 
12, 1932 for 5 years at 6 per oent. After reference the chancellor 
oTeriMiled exceotions to the master's report and ordered a lien in 
plaintiff's favor In the sum of $9, 071, 27, 

Among other items of indebtedness the master found the 
sum of <?400 interest due April 14, 1933, with interest thereon from 
that date at 6 per oent. Defendants objecting to this allowance, 
claim that the 400 item represented a note given in oayment of 
defaulted interest notes in October 1932, It apnears that shortly 
before maturity in Oorober of 1932, plaintiff, then in a hosoltal, 
agreed to a further extension in consideration of defendants' agreeing 
to pay the last 3 defaulted interest notes amounting to *406, to 
enable olaintiff to nay her hospital bill. The extension was made 
and, thereafter, defendants instead of giving olaintiff cash, gave 
her the note for 400 and 6 cash. The master found that the note 






, «0IW3<SU8 ; 









8*tti^fli«Xq fii o«ir««ft f£iriw ft«li«« ftnff««Xoe<sel « si aid? 

fiflA «*lfi8i^» nla*i»o ^1BJUI9 bel&»qrtA ov&rf 39a«&b«1«Q •iovbI 
»jB£i»i) ,A jisii»Jb»«r'* ^nal/rtstaft •ill' •«»9fi»K?eXXji i9riA^«9 tti v^tte^itto 

,XS'9X ,M nede^oO jrn*ffiejii*io&ii« \«f ftfiji iamo loq d i/s ^ns^x •9%AS at ntst 

i^doSoO nia^ baa tano t^q d ^a »'x«sx d *iol ,9fl««<»«^^ et«t«q*t a 6fiii 

•folleoosilo «il? •oa»net»^ I'^itA ,Jc»« laq 8 Ja attBat 5 lol SCfiX ,SX. 

at tt9ll B b9i9b^c bti». i'toq9i 9*'i9t99m 9di oi aaei^qaoxa b9jJm9ro 

,7S»X'ro,€$ to am 9^ oi aoTst a'tti^alAXf 
•rl;r batictt 'ss^aAfl e£i;t 3e«aj&0#^«r»&fli to »m9ft nndio jfioaA. 

^•oilAveXXa eiti^ oJ s^niireot^^o »iaBb&9t9fl «;fn«e i»q 9 ^a 9fBb tmdt 
to ^fi<i«XJ»<? ni aarX^ ston a fie^oasaifia's ii*?! QO^-H 9iit taA3 -mlalo 
XX^foiie S&sit Biasqroa #X «SS&X tc^o^oO al aafan :ra»n«^iii da^Tiuatafi 
«XA2Xaaoxi a nX otad} ,ltX;fflXaXa ,3Sex to lacfo^dC ni x^XiviTaa aiotatf 
Si3Utaa«xsa *i;tfla&aataX> to noX^aiaiisnoo ni noi«na:rxa i»d^0t a o^ ftaat^ 
o^ ,ea^| o^ sni^Wfoas aaitofl ^aa^a^aX b9ilu(t'\9b S faaX aii^r XBq oi 
aftaa aaw noiana^Txa ailT «XXX<i Xa^XgaoiC lad xs<^ ojr ttXituXaXg aXtfa^a 
aTAs ^aae ttX;taXaXer yiXvis ta Jbaatani 8^fla^^!^taC) ,ia^t«a*fari^ ,Cina 
a;rofl arit ;r3ii^ &miot la^aaa adT «fieao d bne, 09il^( •lot alofl ad^ n9d 



2 

was a aubfltitute for the defaulted interest notee and included tha 
aaount thereof with interest in the lien, Since plaintiff did not 
intend to receive the note at all, much less in payment of interest 
note% the master's finding was proper* 8aB:er v. Oalgensteifi^ 314 111, 
226; Illinoia^Indiana Fair Ass*n ^ ▼, Phillips* 328 111, 368, 

It appears thc-t Clara Qehm and Frederick A, &ehm, 3r* 
were in the general real estate loan and insurance business, with 
Frederick, Jr, an associate. Plaintiff, in addition to the mortgage 
loan, loaned Frederick A, G,^, Sr, and Clara: 

March 20, 1928 1100,00 

June 19, 1928 100.00 

September 15, 1928 ....... 600.00 

January 9, 1930 500,00 

May 27, 1930 750,00 

These loans were tta(^e on unsecured notes, all of which except the 

^100 were payable to the order of plaintiff and her then husband, 

since deceased. Defendants claim th&t since plaintiff *e husband did 

not endorse the notes, plaintiff could not enforce payment of them. 

This point is immaterial. 

Defendants* principal contention is that numerous small 
monthly payments, rent, credits and certain adTancss, were not 
credited as payments on the mortgage note. The master found that a 
fiduciary relationship existed between the parties and that the 
monthly oaymente, credits and advances, amounting to #2,044,50, 
should be applied upon the unsecured notes on the theory that because 
of the relationship, the payments ought in eouity to be applied to 
plaintiff* s greatest benefit, since equity regards as done what 
ought to be done. 

The burden of proving the fiduciary relationship was in 
the first instance on plaintiff. If proved, defendants had the 
burden of showing that the sums represented by the receipts were 
actually intended as interest payments on the mortgage, since such 
an application was to their benefit* Pomtroy'a £q« Jtiris. (5th £d) 
Vol. 3, See, 595, A fiduciary relationship may grow out of legal 



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9Af ^q»oxe doXxiw to XX« ^as^^ou £'$ttf9«sim.' Ji *1^ tflUBeX «b«j1T 

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ib baA<i9Uti 9*'ittialalq isania J'ad? ml&Io s^iiA&aeted »l>easft99l> veisii 

«X«i*T»d'aajnl 8l Jflloq BldT 
IXsaa »a&i9mtja ^~ji:t al noil'nsJKoo Xeqisainq ♦«Jn«L&ft9t9C[ 

,0{i*>^0«S^ o^ T^al^nufiiBji ,«©oaaTJ&« bno '/p^sto ,'i*n»«x«<? x-^/lsTnoa 

iiX tair fi|[XitefloXJflX»t XTj8i3ifl>X"t oilJ salyo'tr "ic ns&Tvtf «riT 

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dona 8oni« ,»sjbs^'^«>(° 9ti:i no Biti9K%»c> in^ii^tat aa b9ba»7ai xXXau^os 

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^ 



3 

relations aad as well out of all oases where relations exist in fact| 

where oonfidenoe l8]Xi8rT^»^on one side and domination and influence 



result on the other, '^eely t. Rowe . 370 111. 336, The evidence is 
J^ undisputed that for thjirty years, since plaintiff came to this country, 
defendants handled plaintiff's fiscal affairs, made investments, 
collected mortgage payments, ourohaeed property for her and borrowed 
considerable sums of money on see\u*ed and unsecured notes from her* 
These facts show that defendants were her agents and that she reposed 
confidence in them. The fiduciary relationship was established and 
defendants had the burden of nroving the intended application of the 
payments. 

The disputed reeeinted payments were evidenced by contem- 
porary records, receipts signed by olaintiff and retained by defendants 
and notations on sheets of paper )t«pt by olaintiff* Hecitals in the 
receipts and the notations on the paper were written by defendant s« 
Prior to this system of recording oayments, interest oayments on 
the unsecured notes were recorded by endorsements by defendants thereon. 
So far as the record shows no action was ever taken by plaintiff on 
the apoarently defaulted unsecured notes* Plaintiff's record of the 
payments following discontinuance of the endorsement practice, indicates 
that an accounting was had on August 14, 1935 when plaintiff moved 
into property owned by defendants where her rent and other items were 
sometimes credited as interest payments. The accounting shown in a 
statement typewritten by Clara Gehm is on the first page of plaintiff's 
records* This statement lists the unsecured notes, the amount of 
interest accumulated and due since the discontinuance of the endorsement 
practice, credit of 490 in defendants' favor and against the total 
due, and a balance due olaintiff of 201,50, Immediately thereunder 
begins the record of the hand written notations of mash payments with 
no statement of their intended apolication and no description of the 






^l*itn}jot atflt oi sttad Ytitalr^Sa osiils ,sva«x tWflW* *»®^ *«^* l»»^iiq«ll>a»^{ 

^•trettdcf MsiB i»if fot ti^^ccio I'sa^aciba ^a^fl^iwiflcr ^^x^nam &eto«IIoo 

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no ft;fn©SRi*q t9B*i9Sai ,a?fi«aix^q 3iii5*io©?'t I0 awJax* t-W^ e;t •xol'x^ 

flo lli^raJLsIq xc( ae:^d^ nev a tvoda Moo^t o4^ «a n«l on 

»il^ to, Moosi a*tlJL^AA^^ •teit'on l>»t^t>«3iiiu &9/iB«t9£> x-C^c>*t«qqA *ti^ 

^*tBQlbal ,*oi53U8iq ^iieifisss'iefort? siS? tc ©qiflnM/nlJflooeiJb ^jnlvollol 8*n»antaq 

£«ipr^ai ttlHaiaXq AOifte S€@X ^^^ •f«;<^A jic /ba^ €(«v sAl;riu/e«>Ofi a* i^t 

••jew aa«N^i i«ii^o Jsaft S^as-x i«it s>^«iiijf 8*a«6ii»1»i> ^d l>9ffifo -^iJ^sqoiq o;tnl 

£ ill mfOii« ignXtauoooiit o/iT ««^a®«:^dq S'se^A^ni a.e d9;fi£>»io laci^fDcoa 

B^ttliaXsUq tc 8^q :fairtXt ^At tie el ie4&>^' s^XO xd a«;f;rinvttqx^ ;raas*;t47i 

ta«ttas<xo£a« 9/l;r to •oaAirfli^acoaib »£i^ ft«nia 9£rl» hatt b^ialifmtoQB ^aatatni 

X«^'oJ exl;^ jr^iiXA^js l;aA iQTJst 'atnafenstaJ^ ni Otli>^'i tc ;riJ^«no ,9oiloarrq 

ie>&nif&a9^t i^Xa^^X&anail ^OQrS.0^4 to tti::tn4«Xq aJL^b 9on«Xecr is ban ^^»h 

jlliw «la£)6i;fiq {ja«« tc aocXtB;roii xia;r«rXtv biuxi 9tiS to l>neo9n 9il3^ aaij|atf 

9 At to Aoiiclioaot Off 6aa aol^s9iXcq« t>9bti9tnt il9Af to >n»ff«;r£:^t •« 



4 

payments as Interest, The contoiaporaneous receipts of the same 
paynents held by defendants, reolte on their faces that the oaymente 
are for interest on the laortgage loan. There Is, accordingly, an 
ambiguity between these evidences of defendants* payments, both of 
which were preoared by Clara Geha. Plaintiff says the payments 
were to be applied on the unsecured notf|> 

Defendants Insist that the recitals in the receipts ax^ 
conclusive, A written reoeiot is evidence of the highest and most 
satisfactory character, but may be explained by parol, ( Winchester 
▼• Srosvenor. 44 111, 425), esceoially where there is ambiguity and 
defendants have the unusual burden of fiduciaries, while plaintiff 
was imprudent In signing the receipts without reading them, as she 
says she did, under the olrcumstanees here, we believe the master 
properly resolved the ambiguity against defendants for they did not 
show, as it was their burden, by a preponderance of the evidence 
that these small payments were Intended to apnly on the mortgage. 

We believe the finding of the master and the decree are 
supoorted by the evidence and are in accordance with equitable 
principles and the decree is hereby affirmed, 

I»CCREE AFFIHMSD, 
BURKE, P,J, AND HEBEL, J, CONCUR^ 



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42251 

ANNA SUNDBBRa, 



I.A.138' 



Plaintiff - Appellee, 



AYRES BOAL, SR., MARGELLA BENMETT KlB^i^tB, 
P i err* Andre ) , ,^^^2^*^^-"=--*'^-*-..v^,,,^^^ 

On Appeal ot^^AM ANDRE GOURQUECHOM, ) 

Aooellant. ) 




MR, JUSTICE KILEY DELIV£J^D THE OPINION OF THE G0U1T» 

Thit is a personal injury action with verdict and judgment 
for plaintiff for #1,200, Defendants Boal and Kirkland were dismissed 
at the trial and Gourguechon appeals, 

August 9f 1939, plaintiff having had her hair treated in 
defendant's beauty parlor in Winnetka, Illinois, fell and broke her 
left vrist on her way out of the establishnent. She alleged due 
care, negligent operation of the Shop which allowed soapy water to 
reaain on a heavily waxed linoleum aisle, by reason of which she 
slipped and was injured. Defendant denied due care; negligent oper* 
ation; allowing soapy water to remain in the aisle; that the aisle 
was heavily waxed, or slippery, or dangerous; or her injury on his 
aeeount« 

Tiro special interrogatories were sulMiitted to the jury: 
Did defendant or his employees know, or should they have known, 
before the accident thet water was on the floor?, and, '«fas plaintiff 
in the exercise of due care? Both were answered in the affirmative. 

The first point raised is thst there is no evidence which 
tends to prove defendant's negligence and defendant contends that the 
trial court should have directed a verdict for him and given him a 
judgment notwithstanding the verdict. On this point we shall confine 
our examination of the evidence to the determination whether there 
is any evidence which, with its proper inferences, considered most 



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fli 69*««t!r ilAii 'xtd bad }^Riv»d I'iiialMZq ,e£©X |<? ^aiHgu^^t 
nexi e:^o'2!i fe«« XX«l ,8iftiilXXl ,:j^^©fi«i>? ai ♦toinrA^ x^»£«^ a»*n«feo»l»fc 
«»«b fc&»»XX9 »rfa ,#^i«B^iXcfsta9 9Ai to Iwo t«>c lO'i oo ;?8iTw tl©X 

aXrl no T5ii?^oI ^9f( 'so ^t^aoi^'^n'ib to ,%t«gqlX8 -to ^[>«T.-^w -^XiTc^it axv 

:V"'t »£i^ c* fee;r;riffi«rii'« snew ft»i7«;rxi<»tn<?tni X»ict<^ onf 

,rmcfl:^ svsfi x®^ feXifOfla to ^vioni »©9tcXq«» «ix! *to 3nai>n«t9b ftlG 

,8VX;rflanX'il« 9di at b9tnvi9as »i®w rf*cS Ven:o «t»6 ^c ©sls^sxs •f(^ iiX 

rittlriv 98fi4»i^iT9 ©It ai »*»»ri1^ t'i,Ai 8l feeaiAi Jnioa Ja-^it »riT 

•jB(f tj^xl? s6fl«Jno9 9azta9li9b ba» •^fle^.iX^on •'^fui5n9'^»& oTon? el aAiiM 

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9atJat>9 XX^a ew tnioc alri^ eiQ ^tt^thn^r 9tii i^UoBSvsii twica itneo^ti^f, 

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t9om b9i9bl9a90 ^999tt9t9lnl isqonq a:^! Ailv ^ctalilw aMiafiire xa« ai 



2 

faTorablt to plaintiff, tenda to prore her case. There is evidence 
that plaintiff was ^^alklng from the rear or Horth end of the Shop, 
carrying a bag and a pair of shoes in her left hand, and fell in the 
"working room" which was "very dark", in front of the manicuring table, 
having stepped in soapy water on a "very slippery, heavily waxed 
linoleum" and "fell so fast she did not know what happened"; that the 
water in the spot was 4 inches in diameter and about one-fourth of an 
inch deep; of the use of soapy vater in the manicuring orocess; of the 
preparation of soapy water for manicures at the rear end of the Shop in 
the "dispensary"; of carrying of the soapy water from the dispensary 
in bowls or trays to the working room for the manicures; and that a 
bowl is sometimes knocked over by a clumsy patron. 

We think there is ample evidence with legal inferences which 
tends to pirove defendant's negligence and, accordingly, the action of 
the trial court in denying the motions for directed vex*dict and Judgment 
notwithstanding the verdict, was proper* 

Defendant says it is undisputed that no employee put the water 
on the floor or did anything to cause its presence there, or knew it 
was there; and that it was not there sufficiently long to give notice 
and cites Davie v. South Side ^1. R. R. Co . 292 111, 378; Antibus v, 
W. T. grant CoMpanVf 297 111, App, 363 end Mader v, Mandel Bros .,. 314 
111. 263 in support of his position. Plaintiff contends those cases 
are distinguishable because in them, persons other than defendant's 
employees may have caused the substance to be where it was to cause 
the injury, while in the case before us, no one but the employees 
could have done so. We agree with nlaintiff that since there was 
evidence of soapy water on the floor, and incidentally this evidence 
was not contradicted, there is no way reasonably conceivable that soapy 
water could have been in the aisle, other than through the agency of 
defendant's employees. It follows, therefore, that there was no need 
for plaintiff to orove that defendant had or should have had notice 
of the presence of the soapy water on the floor* Pabst v« Hillman' a 
293 111. App. 647; Kroger Grocery A Baking Co . v, Dieboldf. 276 Ky, 



s 

luii nl IXelt htsm ^bnnA fi9£ led isi sdoifs to ti«q £ finn s««f a sal-^m^o 
^Qldmt sraX«u/5ilKa« »xl* to inotl ni ^^x'r^b "y-ruv" 4j>v A&Mv^K^cn seiljiTov" 

•d^ JS3£i;r ^"fitfAdf^CfACl isAn wo/7a( ;^ea &i& »/iig t^at oa Xivt" £ii» "ax/flloail 

9iltf tc ;s«6dG^0 p^ifinuoiiiisfti ».d? ai '^1!^ifsv i:aa08 to »t« •il^ to {qvcA doni 

xti qoi^ »iit to £^£(9 IS®'} «((;f iB ^fsnu^lamR *xot 79^«v t^o» to fioi:fjnAq*^q 

Xtasnsxjaifi «xi? acnt t«?sw tc^aoe arii- to sfiifsiAO to j * Visfi««<I« i* * •^ 

fi ?<5ri* 5w j/s'-'trnirisffi ert^ tot mooi gflWacv •jd* o? st^T* no aXwecf ai 

rloldw asaoeietfiX XfigsX iS*iw 99n9bJiV9 aXqae «X d»tft£l;r lUiiil^ »W 
to aoi:tojs sifcf ,tXsai|>'30»sifi ^a& toaegiXsaa «**fij8J&fl«t»ft •Yortq o* •£««;} 
?ri»]^|fetrt, fraa *o/ t*-^ l».*:t.^.=.x f^. v -.> snox^foffl ©dd- gal\;n«5 aX J''uico Salii Bdi 

« x^qenq «jev ,;r»l£Hi0T a4;^ ;]^ldii«^ft4l9Xir|ofl 
leJew ed:r iuq eey.-^'qi'- -w .... .. .M;rjyqjiif«stt ai cfX a^"- litjsljaetasl 

tX v^iLx 10 ,enajl* eo«»s«n« aiTi sau^s 0? j^nidi^^a &Xi& 10 locit a/1? Jio 
•al#ofl aTXa 09 gfloX itXJxiaXaittija »*ta£(;r ton a«w #X -^*rt* fifl* ja-zaxl^ ajsir 

aeajso aaoxtt fjAna^noa ttX^uXaX*? .noXfieoq. eXi! tc Jnoqqxra «X 58S ,XXI 

a';}^iial){ieta6 a&d$ tedio anoaiiaci ^9sit at saju'aaad ^XdRdBttr^altulb aia 

aauao o| aaw 91 9n9dv ad c;r aouBcrscfira aii;r 5««&aj9 arad %«■ laaxoJiqat 

aea^oXcpa 9d9 iud c.' ^^u ©'scta^^ «a*o 9d9 nX aXXjchr ,vji«ttt<t »ti9 

sM^ &t9dt aonXs ^©iSJ^ 7 j.c;aXj8X0 ri;JlK ©aiB^ afc «oa ajfxofi avaxC fcXiroo 

aana&Xra tXiW X't-I^**fl*>J^J^onX &fla tTooXt %di ao t^fA^t xquoa to aacaMra 

Xqsos taA9 aXtfayXaonoo xJ^c^janoaaai x«w oa bX srtariit ,^a?oXban[;faca Jon ajtw 

13 tanaaij ©ilrf dBfJc%d9 a»dt tedto ^alala tr!* nl aemd »?«4 Mi^ea naitav 

psan Oil asw atsri;^ ;fa4? ,anotai»iicf ,ovoXIct 91 .isaxoicjiaa a 'loafiixataJb 

eoXJon barf arsx! fiXiioria 10 bari *na6n9taJ& JariJ svotq o* ttXJaXalq not 

a 'flj^gXXXH «r aadaq .looXt ad} no rtaJaw tqaoa aii^ to aonaaanq aiiif to 

»X2 6VS JbXodaia .7 .oO sAUlafl A msftMiA «««avX *V^ .nnA .rrT r.09 



3 

349, 124 3. W, (2) 505; Sears, Roebuck & C«. v, Peterson, 76 Fed, (2d) 

249, 

Defendant says he has definitely shown that none of his 

employees eould or might have caused it. This contention is based on 
the fact that several defense witnesses, anployees of defendant testi- 
fied that no manicures had been given before plaintiff's injury on that 
day and that soapy water is used only in manicures. This question was 
for the Jury, They had the evidence of plaintiff that there was soapy 
vaterj and the defense evidence that there were no manicures given and 
soapy water used for no other ourpose, leaving the inference for the 
Jury that there was no soapy water. There is no denial that the water 
was soapy and no affirmative testimony that it was not water, although 
a defense witness related an alleged conversation with plaintiff which 
infers that plaintiff herself caused the wet spot. The Jury's province 
was to weigh these conflicting, contradictory theories. 

Defendant eays the testimony that there were no manicures 
given that morning differentiates this case and the Sears Roebuck case. 
It is true that in that case the defendant's employees did not testify 
on the question, how the injurious substance came to be on the floor, 
but that difference does not preclude applying that ease to the question 
whether plaintiff here was required to prove actual or constructive 
notice on the part of the defendant* 

Defendant coaqplains of the giving of plaintiff's instruction 
number 4, which stated that plaintiff was required to prove by a 
preponderance of the evidence that defendant knew of the presence of 
the water or that it had been there for such a period or got there 
under such circvimstanoes that it might be inferred that defendant or 
his employees could have learned of its pz*esence by the exercise of 
due care. Defendant says there is no evidence that any employee did 
anything to cause the water to be there. There is the inference - 
whiih is enough upon which to base the instruction. We think the 



s 

>o »rtoa }«il} mro-ias x-ilsififlil^f/ sari ©ri bii«« Jnjjff '": 
«c Aeaatf «X ttoli'fl^Jooo sin . b^suM^ »v»ri ?jctsiisi 10 bI»oo s8«ntoXcE?:) 

JatiJ? no tiJ5rt,«ai 8*tliJKl£ <.*vl:s nencf Seri eeiuoinaa on i&di b9l^ 

•,'•>:!■ -■I.0-O& c- ■■ .' ..:--■■ *sw i;r 'J aw «*t«£W' ifiiriJ' V^ttl 

II I ;; J ?on ajBW tt t&at t»QKi^a»? ©vlJftffiwntfi on bna tcr«o» "J*^ 

rioidw ^ll;fflisXq ilcflw noltjsaisvae© bes«XX« ae 5?^;faX»^ a99aitw 6an9l«d ii 

eojiivotc? a't'WJt e; , sxiif fesawjso IXssneri JTittcilsIq tAdt analal 

aoTx/aiiuuB ee ataw •'sail;^ ^si!^ ^etBl;f8af »£it a'^.en ;rfL8i)fi«taCI 

y9a«o iCcjocfaoH jijiij^ga aefcf fcus aaae alxW iBtniti'iV^i^l'ilb gfii/rxon J^jariJ nayJts 

^liJae? iron bib at^x^Xqa^ a'Ja&feaalaB afi ! nti;f nt tsri* ainc* ti *I 

,100X1 aill" no aof oJ aoao aan«;fGcf«s suoXfrnt'^i »iiJ woxl ,nolJaattp aiC^ «<? 

floi;f8««p ari? oJ aaao l^*ri* S*'-^"^'^^^* 9JE>i;X©eiq ^ofl aacfe aanai«m£ ?«MJ Jucf 

8Tl:rouiJano© "to Xau^aa avd<j ©;t j&a^ijwpan «aw atail Itl^claXq itAtwttw 

*#fl«l>aeta£> ail J to ^i«q srii flc aoiahon 
jQoi;f a&tftai; a'mifnXaXq tc ^rtivl-^ ©ri:r to aalaXqiioe #nsibaala(I 

« X<;^ avo^g o;f bmtupr . 'i'iUnL%l': 5«/t? fea»**8 rfoliiw ,> tadai/n 

to aonaaaTtq Bd^ to Ta-sfi?: :raa?^«^"»»?> JsJtJf a©naj&lr» a£ii te eoaanalbfloqiaiq 

to :fnjRfe««»*X:«|» tiatfJ fcatielfli ed tiisia ^i ^f^rt-^ 99»aaftaafoito Aonn laJStiw 

lo sfioiaxa ariJ '^cf aonaaanq aJl to feairwaX aveil 5X»oo aeaxoXqaa a 111 

btb 9«toXqB!0 xn* Jt^BriJ a^nsJMTa on ai an»xl;t s^s.' ;fflaf>nataG ,9Ta* %Mb 

« ©ona^«tni ariJ si anailT ,a*i«fi«^ acf 0* ia*flw oriJ aeoao ot snirf^xca 

ibdt lUtic? sW ..trltotnitafli «ri» aasd c:f rioljrh' iiocjw dscoJia al ifiairiv 



4 

Instruction was properly given because according to the oases herein- 
before cited, deciding the point, the jrule is that >rhere the 
circufflstanees show that the presence of the substance i^^as possible 
only through the agency of defendant or his employees, he la charged 
with the knowledge of its presence, for the law presumes that an actor 
knows the consequence of hit acts* 

The Jury found in a special yerdict that the defendant or 
his employees knew or should have known before the accident that 
water was on the floor. Defendant says that neither the court nor 
Jury should surmise that the water reached the floor in some 
unexplained way, whereby defendant's negligence might be inferred* 
In this case we think that the inference of defendant's negligence is 
not unreasonable. 

For the reasons given the Judgment is affirmed* 

JUDGMENT AFFIRMED, 

BURKE, P.J. AKD HEBEL, J. CONCUR, 



wtBjS* 3f«f&li9DA »Jit j«ot«>«J msrofij^f »vj8jfi feiifc»ii« lo 'Wftfljrf a»«^el£j«« alii 




*"'° 3S0I.A. 13°^ 

ROSE E* CAMPBELL, ) APPEAL PROM .,.,/.I" 

Aopellant, ) ^^■■''--'■''''"'''"'^''''^ J ^"^-Hi 

QOLDBLAtT BROTHERS, INC^Sr^^iJ COOK ^68!!^ 

oorp oration, ,„^--^^^"* " T'''**^^^^*!^^^ 

"^^ MR, JUSTICE KILEY DELIVERED THE OPINIO^ OP THlf'eOlBf, 
This l8 a perfonal Injury action In wlilch Judgment was 
entered for defendant notwithstanding a verdict In olalntlff's favor 
for $12,000,00, Plaintiff appeals. 

Plaintiff, a hovaevlfe^of 44 feare of age and mother of 
four children, was Injured Jeptember 16, 1938 In &oldblatt Brothers, 
Inc. department store located at State and Vg,n Buren streets, Chicago, 
She was shopping, boarded an escalator descending from the first 
floor to the basement and the accident occurred at or near the 
basement floor. 

Her original complaint stricken, plaintiff filed an amended 
complaint alleging due carej duty of defendant to provide a safe and 
proper place for her and other passengers on the escalator; duty of 
defendant to exercise the highest degree of care consistent with 
the practical operation of the escalator; end that her clothes became 
entangled because of defendant's brtfach of duty; and that while 
entrapped she was Injured, She further charged the defendant specific- 
ally with allowing Jericy operation of the escalator; throwing another 
woman passenger to the steps, contributing to plaintiff's Injury; 
falling to provide proper guards against entanglement of women's clothes; 
falling to provide guards or brakes to stop escalators when plaintiff's 
peril became apparent; and falling to provide automatic switches or 
brakes to stop the escalator. The answer admits the duties but denies 
breach, denies plaintiff's due care or negligence or that the Injuries 
resulted from Its negligence, A trial was had on those Issues and a 
verdict and Judgment for plaintiff was entered on November 21, 1941, 



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2 

Plaintiff, after Terdlot, wae given ^eave to file her second 

aaended complaint charging the negligent operation of the escalator 

In violation of Chapter 79, Section 149 of the Chicago Code, which 

proTlded afflong other things that an emergency stop button aocesslble 

to the public should be conspicuously located at the top and bottom 

of each escalator landing and be marked In capital letters* 

Defendant moved to strike these additional charges and for 
Judgment notwithstanding the verdict* The only gx*ound for the latter 
motion to be considered Is that there was no evidence with prt}per 
Inferences tending to prove plaintiff's case. The court struck the 
second amended complaint and entei^d Judgment for defendant* 

There Is evidence in plaintiff's case that the ordinance 
vas violated because her Investigator said that the stop button was 
not conspicuous or accessible. Defendant's witness, ? photographer, 
likewise testified that though he took photographs of the bottom 
landing, he could not see the stop button. Just before resting olaln^ 
tiff's case, coxinsel asked the court to take Judicial notice of the 
ordinance. To meet the objection raised that the ordinance had not 
been pleaded, plaintiff offered the amendment which the court permitted 
filed, but later struck, oresumably because of defendant's surprise 
and disadvantage. Plaintiff offered a copy of the ordinance In 
evidence, objection was made, and the court said It would rule later. 
The record shows no ruling, but Indicates the court would not have 
permitted the copy in evidence and while the court stated that It 
would not give an instruction for plaintiff thereon, such an Instruction 
apparently was given. Near the end of defendant's argument for a 
directed verdict at the close of plaintiff's case, the court stated 
that if the ease went to a Juxr* any verdict for the plaintiff would 
have to be set aslde^t 

Defendant does not complain that the first amended complaint 
did not state a cause of action. It does complain that the second 
amended complaint states a new cause of action and, that since two 



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3 

/ears had elapsed following the accident, the asendaent was properly 
stricken; that not having olted the ordlnanee In the original complaint 
In accordance with Rule 13 of the St^jreae Court, it was not properly 
pleaded, plaintiff did not rely on it and, ooneecuently, it was & new 
cause of action; and that plaintiff departed froa the jerking theory, 
stated in the first amended coaplaint. There is no evidence of Jerking 
and plaintiff's attention to the other woaan, was drawn by the latter* s 
sereaa, ooneecuently, there is no evidence to support that charge in 
the ooaplaint. We believe thet evidence of the ordinance was not a 
wide variance, if any, for under her specific charges plaintiff complains 
that defendant failed to provide brakes to stop the escalator after her 
plight beoaae apparent to defendant and failed to provide automatic 
brakes to prevent injuries to passengers. Under the liberal policy of 
pleading in this State, we believe that those specif ic charges allciptged 
in substance the violation of the ordinance and under our liberal 
policy of aaendaents, the amendaent filed should not have been stricken, 
and sinee we fail to see how defendant was prejudiced, we conclude 
that the trial court in entering the order which struck the pleading, 
abused its discretion. There is no record of any request by defendant 
for delay, when confronted by the ordinance, nor so far as the record 
shows any objection to the testimony of olaintiff*6 investigator with 
respect to the stop button; and furthermore defendant's ohotographer, 
as well as other defense witnesses testified on the question of the 
•OBspiouousness and accessibility of the button. We cannot see either 
that the defendant's case would have been presented in any other manner 
if given a delay, or, for thet matter, whether there would have been 
any substantial difference in its r>leading or defense if the ordinance 
had been specifically referred to in the complaint. Defendant says if 
it had been pleaded, it could have answered that it was complying. That 
vae its evidence. Plaintiff's investigator testified to the precsence 



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4 

of a button, but that it was Inconspicuous and inaccessible. He was 
not plaintiff's last witness and the testimony plainly Indicates 
plaintiff's intention and theory under the first amended complaint, 
and negatives any idea of an afterthought. This witness was cross- 
examined at length in a manner which indicates thst defendant must have 
surmised plaintiff's theory of violation of the ordinance. The 
amendment was offered aptly, included a claim which we think was plainly 
intended to be brought in the first amended complaint, gr»w out of 
the same transaction, and should not have been stricken* Metropolitan 
Trust Co . V, Bowman Dairy. 369 111. 222, 

The parties do not dispute the rule which controls the 
question of the oropriety of a Judgment notwithstanding the verdict. 
Defendant, however, persistently az^gues that there is no evidence that 
any negligence of defendajit's caused plaintiff's fall; and that plain- 
tiff's own witness T»ylor, refutes plaintiff's claim thcit while she was 
entangled after the fall, she could have been injured by the descending 
steps, or that defendant had not operated the escalator piroperly and 
in accordance with the ordinance. Defendant also argues the question 
of manifest weight. We shall disregard the testimony of Taylor where 
unfavorable to plaintiff, and are not concerned with the question of 
manifest weighty, Our sole inquiry will be for evidence and proper 
inferences favorable to plaintiff. That evidence is that plaintiff 
heard a scream and saw a ]a dy had fallen at the bottom of the 
escalator; tried to back up but was carried down by the descending 
steps into the woman; that her coat caught and she was held entangled 
while the descending steps struck her in the back for more than four 
minutes iriiile the other woman was screaming; that there were clerks 
and other persons near the bottom of the escalator; that an investi- 
gator found the stop inaccessible and inconspicuous in violation of 
an ordinance; that a photographer who took pictures at the bottom of 
the escalator did not see the stop button; tSiat if a coat became 



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5 

entangled In the escalator, the machinery would stop; that plaintiff 
had to be talcen out of her coat before the coat could be removed; and 
that the escalator wae still moving when »he was taken out of her coat. 

We believe that the foregoing evidence and the proper 
inferences to be drawn therefrom, considered in the light most 
favorable to plaintiff, clearly tends to prove her case* We are bound 
to consider no further points and for the reasons herein given the 
Judgment is reversed and the cause Is remanded for a ruling on 
defendant's motion for a new trial. Qoodrioh v, apraaue. 376 111, 80, 

JUDOMEMT REVERSED AND CAUSE BEMAHDSD, 

BURKE, P,J. AND HEBEL, J, CONCUR, 



8 
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Abstract 320 I. A, 130 



C-EK. NO, 98S3 



AGENDA NO. 1 



IN^^ APPSLLAO^E COURT OP ILLINOIS 
\ ^COND DISTRICT 

%M TERii, A. D. 1943 



FRED J. HINT^, 
/ 
APPELLEE, 



va. 



FRED BURREN, ET AL,, 
(JTIED BURREN, 

APPELLAOT) 



APPEAL raeil,. THE CllfeuV 
COURT OF DuPAQE GOUi^TY. ^-^ 




HUFFMAN, P, J, 

Appellee instituted this axilt against appsllant 
and his truck driver to recover for personal injuries 
and property damage resulting from a collision between 
appellee's automobile and appellant's truck. The jury 
returned a verdict for appellee against appellant and 
his truck driver in the sum of v3#000» Appellant brings 
this appeal from judgment rendered thereon. 

All of the various and usual errors are assigned 
for reversal, among wixich is the contention that the 
verdict is contrary to the evidence* 



- 1 ' t?^-TC?t ■JK^grST "■ - ' 



'iUJ^ 



The accident occurred on October 4, 1940, at about 
11:30 at night, on Route #54, near Hinsdale • The high- 
way was a divided, four-lane, cement road, with two 
traffic lanes for the north bound travel, and two traffic 
lanes for the south bound travel. The parkway dividing 
the north botind f]?om the south bound travel appears to 
be approximately ten feet in width* 

Appellant's truck driver was proceeding north and 
in the east or outside traffic lane. As he was thoa 
traveling on Route #54, he came to a slight up-grade* 
The motor failed, and he applied the brakes in order to 
hold the truck* The driver states that he placed a light- 
ed flare alongside the cab of the truck, end another or© 
approximately one hundred feet behind the tmck, and in 
the same traffic lane occupied by the truck* i e says 
that after placing the flares, he and his helper started 
to examine the engine to see if they could discover the 
trouble; that two or moz»e cars passed them, on the inner 
traffic lanej that his helper was holding a flashlight, 
while he was engaged in examining the enpjine, when i^pellee's 
car collided with the rear of the truck* This witness 
further states tiiat the front and rear lights on the truck 
were lighted at the time; that in addition to the tall-lights, 
there were other lights across the top of the truck; and 
that the flares were burning after the collision* 

His testimony is corroborated by the helper, who says 
the engine failed on the up-grade, wljereui3on the driver 
dismounted, lighted the flares, and placed them as above 
stated; that two cars passed following the placing of the 

-2- 



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flares, proceeding north In the Inner traffic lanej that 
the driver of the truck began to examine the motor j that 
he was holding a flashlight for him; that soon tiiereafter 
the collision in question occ\irred, which knocked tiiem 
both off the fender of the truck; that he immediately 
arose and ran back to the rear of the truck; that the 
lights on the truck were then burning, except such as 
were knocked off by the collision; that the flare at the 
rear was burning as well as four red lights on the back 
of the truck; that immediately after the accident, two girls 
and two soldiers came up In a car; and that soon after, the 
police officer arrived. This v/ltness states the flare at 
the rear of the truck was placed in the east or outer lane 
of the north bound highway, and that when the police officer 
arrived, all the lights were just as they were imiaediately 
after tiie accident, and were in the same condition as prior 
to the accident except such as had been knocked out in the 
collision. 

The witness, Jean Praser, states that she is a student 
at the University of Wisconsin. She was one of the occupants 
of the car with the two soldiers that came upon the scene of 
the accident immediately after its occxirrence. She says her 
attention v/as directed solely toward appellee; and that upon 
request of the truck driver, they took him to the police 
station at Villa Park, in oixier that he might report the 
accident. 

Another occupant of the car in which the soldiers were 
riding, was Sally Plerson. She states that as they approached 

-8- 



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.•:'e^'- . Jill 



the scene of the accident from th© south, she saw a red 
flare in the pavement; that as tiiey approached the point 
in question, they saw the wreck; that the flare in liie 
pavement was about one hundred feet back of the truck; 
that she saw anotiier flare along the side of the truck; 
that they took the truck driver to the police station at 
Villa Park, upon his request; that they then rettirned to 
tiie scene of the accident; that appellee was still in Ms 
car and had not yet been removed; that soon after lier retvirn, 
the police officer cane, v/hen appellee v/aa removed from his 
car and sent to the hospital In an ambulance • 

The foregoing briefly suraiaarizes the evidence on behalf 
of appellant with respect to the existing conditions at the 
time of the collision. 

The plaintiff testified that he was proceeding north 
on the highway in question, at about forty-five miles per 
hour; that tiie lights of cars traveling south, over on th© 
south bound traffic lanes, had affected his vision; that 
he did not see any lights ahead of him on the M^^iway he 
was traveling; that he saw no flares; that he saw no lights 
on the truck; and that he did not see the truck imtll he 
was upon lt« The next thing the plaintiff re^iembers is iftien 
he regained consciousness in the hospital. 

Plaintiff called five witnesses consisting of a doctor, 
a nurse, a garage man, and a man who testified relative to 
damage to his car. .;one of these were at the scene of the 
accident, except the garage man, who was sent out to get 
th© car. The fifth witness was a deputy sheriff of the county. 



diior^ .^.ci.^racato: 



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'■.d aoqss ^:^i»^ ailJtV 

is/ ^4>s bsii a&s -^riic 



a: 



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;c;rl's 3d-.- /^a jbJJ> erf 

•- 7*sj ^sU no 
aoqi/ &inr 

. -• .-*1il art? .rmp erio 



He was on duty in the squad car at tiie time, and 
iimnediately went to the scene of the accident. He 
states that he found plaintiff's car had collided 
with the rear of appellant's truck; that the driver 
of the truck at that time was not present; that plain- 
tiff was still in his cor behind tiae steering wheel, 
and ■unconscious • He says that as he approached the 
scene of the accident, he saw a flare burning in the 
traffic lane behind the truck, Ke approached from the 
south, which was the sane way traveled by appellee. 
He says he first saw the flare at least seven hundred 
feet away, and that when he reached the scene o£ the 
accident, he found tail lights burning on appellee's 
oar, and on the rear of the truck. 

The above constitutes the evidence on beht^lf of 
appellee with respect to the circumstances surrotmding 
the accident. Under appellee's testimony, he saw no 
flares, no lights, and no truck until he was upon it. 
His witness, the deputy sheriff, states he saw the flare 
seven hundred feet away, and upon reaching the accident, 
foujad the tail lights in operation on appellee's car and 
appellant's truck. The deputy sheriff came from the same 
direction appellee was traveling. In addition to the two 
men on the truck \Tdio testified about placing ri&xea, is 
the testimony of the witness, 3ally Pierson, ^lo states 
she saw a flare bulging in the pavement as they approached 
from the south, and that it was about one hundred feet 
back of the truck. She also saw lights on the rear of 

-5- 



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:■■■>-. ,«•«,■<!,•> b^^nwxl fl»vee 
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the truck* The car in ^ich she wels riding waa the 
first to reach the place of the accident. It is our 
conclusion iiiat the verdict is against the weight of 
the evidence. 

The judgment is therefore reversed, and the cause 
remanded. 

Reversed and remanded* 



-6- 



3iJi 



j-nixtBii^i 



x^ 



GEN. NO. 9892 



Abstract 



AGEKDA NO. 14 



IN THE 
APPELLATE GOJRT OF ILLIKOIJ 
SECOND DISTRICT t 



2 0I.A. 140 



ay Terra, A. ^^K 1943 



■^ 




>«K 



RICHARD C. WASlilWai'ON, AjiJ^lnls trac- 
tor of tne Estate of I^rence 
iVilllain Wasnlngton, yeceased, 

/ 
^y Appellee 



) 



LEOiN PETSRSON, 
/ 



Appellant 



APPEAL FROM. 
CIRCUIT COURT OF 
HlKi.E3AG0 GOUKTY. 



DOVE, J: 

Appellee recovered a Judgment for i5, 000.00 against appell^-nt 
In t.e circuit court of Winnebago County, on account of trie death of 
his Intestate from an automobile accident, end tais appeal followed. 

Appellant contends thnt there is no evidence in the record upon 
wnicri the verdict or judgment cold be predicated, that the verdict 
is against tne manifest weight of the evidence and that the evidence 
axiows that appellant's intestate cameto his death by nls own contribu- 
tory negligence. 

The accident happened at about 8:45 P. M. on Aug st 4, 1939, at 
a point about one and one-half miles north of Pecatonica on State 
Highway No. 18, which is a cement pavement eighteen feet wide. Ap- 
pellee's intestate, a boy eighteen years of age, was driving from his 
father's farm south toward Pecatonica, in a pick-up farm truck, ac- 
companied by three other boys, all riding on the one seat of the cab. 



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:l, ,aV(XI 
.-bewollol A . it6.5i.oon oI/.cforolTj- ns cccnt e^JaJe^Jni aid 

©Jea-e no poino?eo9l lo riition eallci 1X?.£i-9no bm^ aac [fucds Jnioq 

-qA .9^1 . aaJrigls ^Jn^sveq Jnsmeo .q al rioliiv »ai .of! -^tawdsitH 

id Ecil _.nivlil) acw ^sqs to enasx nea^xtjila liocf / ,a3&iGiial a'aellsq 

.deo silJ lo :to98 9no exiJ ac ynlfclT XI-^j ^axod ladtfo ssiriiJ \cf fcelasqiaoo 



Three of them, including the decedent, were going to town to have 
their hair out. Appellant v;as driving a farm truck in a northerly 
direction. The country was rolling end as eppellee's intestate came 
up over a hill and ata.rted down the other side he met appellant. 
Attached to the farm truck which appellant was driving was a trailer 
on which there was a hay rack eight feet wide. Two other men were 
riding with appellant on the seat of his truck cab. Appellant's truck 
was proceeding in second gear at about twenty miles per hour. The 
decedent's truck w&s running at about forty to forty-five miles per 
nour, according to the witnesses for app>eliee, and at fifty miles 
per xaour, according to one of appellant's witnesses. All the wit- 
nesses agree tuat prior to the accident appellant's truck was proceed- 
ing in a straight line. The head lights on the decedent's truck were 
turned on. Appellant's truck would show both head lightslighted when 
they were dimmed, but only the right hand head light v/ould light when 
they were turned to bright. Tie two men who were riding with appellant 
testified that both ll^ts on his truck were lighted when they left 
Pecatonica. The witnesses for appellee testified that as appellant's 
truck came up the iilll tou'ard them it showed only the right hand head 
light burning end there is no testimony to the contrary. 

The trailer on which the hay rack rode v;as attached to the back 
end of appellant's truck by an ordlnpjy wagon tongue, with a "hitch" 
on the back e:;d of the truck. The hay rack was about two feet high, 
with sides straight up, and the bottom of the rack was about two feet 
above the pavement. The tread of appellant's truck was about four feet 
wide and the naif rack extended about two feet beyond t;je tread on each 
side. There was no light on the hay rack, and when appellant left 
ir'ecatonica, one of the men vdth him offered to stand on the hay rack 
and uold a flash light, but appellant told him he did not have to do that 



-2* 



\X'X0rf3^ic/; xomi injal b galvl-. taBll9c:irt ,tfuo iJLQri liarlJ 

QfiiBO ©JetfaeJni a'saJXaqqe «« iane gjaJtrioi asw vx^nuoo ©ril .aoiJosilJb 

.;?fl,-J"Ir sriJo ©r, oDJi.sJe ban lllp:. ^ -isto qt; 

:; <.;^a ]£eA<i '^{Ajf £ 8«iir'«^td^ £(oi£lw no 

»/ ;i'g ^sjelXp v^nev xees Jiwoosa nl jinUbasoonq asw 

' a'OfillsqqBB t© »flo 03" ^£iib%QOGA ftuc 

iBwr^Ofc Dsaii 9cn .enll dd^jUji^a .s nl gnl 

xkda£i2^Iatf43lX Jbja«£i «&oci woxla l)Iijow ioi/x^ a'iffu^Ii: :0 i>9aiu^ 

idw /frisJtX i>Iuow JrigiX J&a.^ A|»rl . j .iaaaiixi 9*iow -iSiiJ 

nxaaeil' 09ll9;-, ssaasnJXw arlT ..3 0laoJi?oe'i 

no 69WC WO? ilJLi axiJ qjj sia^o iotnJ 

iOQ«i 9£ jaw 9:601 Xpii«i %a4 eiiJ rfoXaw ao laLlfniS cdT 

-'- 3«w '^^snibio xxa -^ j£omJ a'tfaaXXaqqa lo JE>ne 

'^©t oif* J^tfO . o oojfaocf »4dt 1 ?i3sXai;ra aaiXe ii^ltf 

d-set.lSj/^^t; i«E©(B(iS|, 1^ e's*n»'Wa -391 J edT .Jftaiaavaq 9n3 evoo'a 

xlose iio i^ei,^ eiujr j&ao\;acf ^eel qw^ ?uocfM 69i:2iX€;txs oLr; 3u? ^as aljiw 

ilBl Jxit'iXaqqe a»xiw cat;- .ioxi'i ^wxi axl.J ao J4&XX oa usw aaftal .9aXa 

jiLos*! -{fid 94^ ap JlkOBifa o7 Jbd'xatto 9X4 4tfX'<<r nsut od? loooo ,aoXaoa30»*i 

jf,rU q5 ©«r ,tvB4 tfoii bib an mir. JbXo3 oiiiviXs .43 iixi ^id-^£ 4aiiXl 3 Wcr. ha& 



-2- 



There was a collision on the nill. The truck which appellee's 
Intestate was driving turned over two or three times, njid his body 
was found near the west edge of the pavement. The tongue of the 
trailer attached to appellant's truck was broken off about three or 
four feet from the hitcn on the back of the truck, and the body of the 
hay rack was on the shoulder across the road from decedent's body. 
The hub cap on the left rear wheel of each truck was knocked off, and 
the left rear fender of appellant's truck was slightly bent and dented. 
Kg other part of appellant's truck was injured. Photographs in evi- 
dence snow that the nay rack collided with the left fr^nt fender of 
the truck driven by expellee's intestate, and ripped through the hood 
and windshield. The decedent's body showed deep laoerfitions about the 
upper portion of each hip bone, both bones of tne left fore-arm were 
fractured, the left leg was turned outward, the pulmonary GJ?tery was 
occluded with blood and the spleen, liver and the attachment of the 
small Intestine were torn. There was also blood about the brain, and 
extensive hemorrhage into the space v;iiere the kidneys were located. 
The cfaaracter of taese wounds tends to support appellee's theory that 
they were produced by the hay rack. 

Two of the boys who were riding with the decedent testified that 
his truck was west of the black center Jllne of ts pavement as they 
approacned appellant's trviok; that the latter api.eared to be directly 
in front of them, and that the decedent swerved to the right to avoid 
iiitting It, but that tlae hay rack caught their truck. Both of them 
testified that the left wheel of appellant's truck was approximately i 
on t.^e center line of the pavement. The two men who were riding with 1 
appell nt testified that his truck was on the east side of the center 
line of the pavement. Oib of them testified he remembered where the 
east wheels of tne truck were, because he threw a match out aid it went 



-3- 



lolaJtXIoo 3 84SW 5n:94T 

©liif ^ ■^otf «?.ri? \&m. o iioa-Jtii a4r? fiioil Jg9^ -imoI 

iinA jlfic fta,«j;t>©:- ieriw 1^9*1 *lsl ©xlil no (jso duri fiiT 

• ivr . '3«tt^o3'6i</i .l>9-- :ftiisl.t9qqa lo Jicq leBi^o o , 

.&oori j.i#q<8p vji. fi» vl'xi) atoirx;? adS 

s'SG ri©«f £»oa' ,snoaf ql# jjtctfss Ito- aoJ-^rroj naqqw 

cft*'^'kc«^d fe'e :' aisn©? afjflyow aas.itf lo teS'jRm^^m tslT 

•J-yri;? beltlia^a tfnsAsoftL ei anibM ^dw oii« txo4 ©rid lo owT 

^orff^ 6» ^n«ffi®w. ^uMl^mtmoiimildi esi^r lo,vt»e^w sew jfoinJ aJUl 

fovie ot -i^d^^ awf* oS iJsvxewB JcoJDesei) ail 3 Jari* l)fts »i«eri»f to tfncnl al 

vXg^fiiiix**!:' Ia«riw.4"3t9X-i(8[Ji-4«ittf b^llUmi^s 

;?Xw jjfi'iSl's; sTis-w ^16* «»* wOWij «riT , jri5@jn9T>^q eiici lo anJtX •xo;rnatj »n;l no 
. »*f»9» ariJ Ic B&t9$ms^''Wir'tiO isavif jlD-tJicr aXxl (Tatitf l>9Xli3aeJ *n XXeqqe 
eri;?' Bieiiw fi^ietiawliw <«•! £>ai'tl^aef ate ft* lo aiO .S'najnevsq sriS Ic enJU 



right into the grass on that side; and thst as the decedent's tivok 
got in front of them it turned to the left very abruptly. 

Appellant stresses the fact tuat one of appellee's witnesses, 
In first describing tine accident, said; "V.e came over top of the 
iiill, starting down; other vehicle coming up. '/e ran into side of 
truck, " as indicting that the collision was caused by the decedent . 
It is apparent that the v/itness was merely aentioning the impact, ae 
he immediately thereafter said that the left front corner of tne hay 
rack struck the left front of tneir truck, entered the cab, smashed 
into txiem and they tipped over, v/e do not regard the testimony as 
indicating th8.t the collision was the fault of the decedent. 

It is also urged that the f-ct that the hub cap on both rear left 
wheels were knocked off, while no part of rippellant 's truck in front 
of the left rear wheel was injured, demonstrates that his theory of the 
accident ie correct. Nobody testified that the first impact was at the 
hubs of the rear wheels of the trucks. If the decedent's truck swerved 
to tae right, as testified to by the witnesses for appellee, it is con- 
ceivable that the impact of the hay racJk against its left front end could 
have t:irown the rear end of the two trucks together and thus have knocked 
tne -.ub cap off. Natural instinct v/ould prompt the decedent to turn 
to the right in order to avoid a collision, and no reason is suggested 
why ae wo Id turn to tne left. The Jury and tiie trial Judge saw and 
heard the witnesses and. were in a better position thou this court to 
Judge of t.ieir credibility. V/e are unable to s-y that the v rdict is 
against tne manifest weight of the evidence or thPt it snows contribu- 
tory negligence on he part of appellent's intestate. 

V»hen appellant was examined as an adverse witness, he testified 
that on the evening of the accident he drove to his brother's home eight 
miles from his own home and about three and one-half miles from Pecatonica, 
picked up tne trailer and ha« rack, nd on the wry back went to a can:- 
ning company at Pecf>tonioa. He named Lhc men v;ith him and told of the 



.4- 



I ^ 



.u^qicxdr ^9v tlfti: «Bf* et' Jb«ffii?3 J-i mart;; lo incnl: at iros 

•IP --.Di.-.; cjr.l ;;o.Jiisv '5ejriat> jnwfife sflUxatfa' ^lllti. 

sn;J lo Tt-soQiiiJ- 'Ssni&ae&iBb ,£i8iiL'tfii aisw X69rt# «ia«a Jl^el '•«»'' tfe 

n-tfuJ o? Smb9^ onluexsjt is^joj^ii .t^o qao cf«r: enJ 

i)9i'a9-^^xjE Qi noSB9i o« AiiQ jfioJEsiXXo© » JbiovQ o* la-b^o ill 'JagH arij «J 

^BOlac;tdO;3i eicfit aslija VL^A-'&ao btifi eetat ^itcxi» bm. esvod n^xi Blti mont BeLtm 
-fiaO is o* tm» ioa<S v^w otii no i)rs' ,2le9i »5ri J&aa isHaiJ^ 9i:J qu isioiq 



offer of one of them to stand on the hay rack with a flash light, and 
of ills declining the offer. He described his truok, tne trailer and 
the hay rack, identified two photographs as sho^^dng the hay rack after 
the accident, and testified iue took it off the highway that night. On 
t-is adverse exaaiinaticai he was not aaked about and did not teatify to 
any tiling about tne accident. On uia re-examlnation by his counsel he was 
permitted to desci'ibe the condition of the hay rack after the accident, 
and that the clevis of the trailer tongue was still attached to t e rear 
of iiis truck. Objections to questions as to whether his truok crossed the 
black center line of the pavanent and whether any part of his truck was 
struck by tne other tr;ck, were sustained. 'hen placed on the stand as 
a witness in iiis own beualf, the court refused to permit aim to testify 
concerning the accident. 

Appellant claims that under section 2 of tne Evidence Act, (111. 
Rev. Stat. 1941, chap, 51, par. 2) the adverse examination opened up the 
way for his testifying as to the accident. That section, so fpr as ap- 
plicable here, provides that no party to any civil action shall be allowed 
to testify therein on his own motion, or in his own behslf, when any ad- 
verse party sues or defends as the adrainistrator of <any deceased person, 
unless when called as a witness by such adverse part^ so suing or de- 
fending. 

Combs V. Younge, 281 111. App. 339, relied upon by appellant, does 
not sustain iiis contention, but .iOlds that such facts, concerning viiioh 
the other perty may testify, should be v.'ithin the scope of the facts 
testified to by him when examined by the calling party under cross-examina- 
tion, as determined by the Judgment and discretion of the trial court. 
The holdings in Garrus v. Davis, 234 111. 326, and Grace v. (xrace, 270 
id. 558, also cited by appellant, ere likewise contrary to his contention. 
Under the limited scope of the adverse examination the court correctly 
excluded his dffered testimony concerning the accident. 









.^fi Stm 



bevclx 



.0 gXlli/S OTi 



;if8 no A. .lasq on ?«ri^ aeijivcrtt . 

,.;oltfOffi 

.-. J ainlau 



... . .. ~ > 



rl^" q.u J 



eidViiB rie.t. 



.3|r 

ii^o oMUr •Bdlm/ 
.XXX £8S ,©^flA.oi .V atiisoO 



a sot) jtfsKXI^qe x<i ^*<!>qif ^eiXei ,$£.: 
rioirlw '^intBfmco ,&:iO'^\ dt>m' ®8ri*' ftMt 

-*nlsBX0-8acr£o isbnu xi%a<i siiiXX.no end *u i^onifiucx© iiad** laxii ^cf otf JbdXlIJe©u 

OVS ,8 0R'j;€ ,v ©osi€ jbne ,3S5 .XXI i>CS ,8iv«u .v wii«€ nl agaXWoxl adT 

.noi:?fi9dno» airf o^- x'SBliJnoo welw&iLtX 8"i.fi ,yn-3XXs>qqs ^cf Aoa^o oais ,8d(2 ,1)1 

■^EXJosiioo ifijyco '^ni ao VJ anlv&XQ ©aiavtsa a^tf to ©qooa Si^zlaJJ. ad* istnU 



There was no error in permitting the doctor v/ho performed the 
autopsy to describe tlie condition of the body, over appellant's ob- 
jection, arter admitting the death v^as caused by the accld©it. The 
testimony wrs competent as tending to show, by the character of the 
injuries, that they were caused by the hay rack, and cannot be said 
to be inflammatory or prejudicial to appellant. 

Complaint is made of given instruction No. 3, relating to the 
measure of damag,es, which, after setting out the necessary elements 
to De proven, and in respect to tbe amount thereof, if any, concluded 
with the words: "Modified by t-ie possibility of other contingencies, 
which might lessen or destroy the possibility of such benefit." The 
words r-uoted are complrined of as misleading and and as giving the 
Instruction a doubtful and conjectural meaning. ^ ^ a^ t auUei BMtbxBi ^ zaLilwJM t , 
^f^0iAlJU^fZt^J>^ vfthe words quoted inure to the benefit of appellant and 
he is not entitled to complain of them, "he claim that the instruction 
is bad because it snould have confined the guilt to the evidence, is 
equally without merit. The instruction does not direct a verdict, and 
other given instructions fully informed the jury on that question. 

When appellee's counsel Interrogated appellant as to whether he v,'ent 
to a tavern in Pecatonlca, objections to the questions were promptly 
sustained. The size of the verdict does not indicate thBt tne Jury were 
influenced by the asking of tne questions. No authority Is cited for 
the claim that the Judgment is excessive because there was no proof of 
contribution, and we do not understand it to be t:ie law that such proof 
is necessary. 

Appellant had a fair trial, ther? is no reversible error suown, and 
the Judgment of the trial court is affirmed. 

Judgment affirmed. 



"ita'totf 



. oils on asiiff ensrlT 






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o jaecf '• 
Ji-g iaxi;to 



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jbnc ,nwor.a •x.cwusaL'di; 



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usBJsfiiJt, ■ clelo add" 

I'luoo lel-ii ijxiJ.'lc ,rnfjing,iifL ©Ji^ 



,i»3miilX;:, Jn©£a^^^L 



am, m. 9^H 



Abstract 



> HO, X7 






moQMD ni&Tumt 



uay tmm.. 







CM7l«s H. /awl's, K«oeiT«2' of thm 




ilpp«ai frcsK Circuit 

Court of -iL«i&kuk»V) 



9 ^i ''" 



QOHsaOtH^A,!?-^ C/iS:-S^, 



K&17 ifoQd C«ittpl»oll» li^dividually «fid ttB 
•Xttoutrix of th« L&st tiill ikOd TMitaBMat 
of ¥<iiifittXd S« Ou&i^elXa d*ed&«e4, cit eO.., 

Appell&uts 

DGVX, J: 

Thl* OMttso in in this ($ourt e »«oofid ti£&«!« It originated in 
the Girouit court of S]ftfdecUc«« Couuty, &s « »ult toy 6pp«liiaQit&, «ho 
ttre ttie beaefieiarinfl of e to«tet»«sittiry trust » e^Hlnst t^e trustees, 
the leeal represen t&tlTes, IeiB>^tees &£<& derisees of the (Seem^eeii 
sureties a& their l>o&d, sx %in» legcl representtitives, Io@^t«es &&d 
devisees of e deceased legutee of one of suo^ sureties, &ad the 
reoaiTer of the Oitisens* State Beak of Msateao, for azi feooountiais, 
ressoTal of the trtuitees, p&yfieat of . €dl &one^s reeeived bj theiB, 
with legul interest, mkA the appointMeat ctf new try^stees* 

i^lron a deoree (ipprovltig o&rtain otirm&t report® of the trustees, 
ordering eert&ia bands and stook Iri a hotel coestpany, ae^^uired by thiiasi, 
to be turasd OT«»r to the plaintiffs, diamis&i&ig the suit aa to l^e 
lecal representtitlvea, ^^heire** o&d dsYisees of the deotmsed sureties, 
eautteretins the trustees ivnd the receiver tvo& peylik^g tAy interest 
ezoept thut aotuolly roeeiTsd, eaA proTidiu^ <or fees for the trustees 






,■'''/ 



vua 



£K^a?'J!i'f>4.>-5( «tfd' to a«»alT»* baa ^o^srjv^,- - 

i!f^tsn> nXh(ijL^9 u'^' friU9A a mem 



-2- 
&sd th«lr &tt<^i^ys, t^r* wbm «ii uppmtl to this <iouj>t» u»d «• 

a 4«Kir«$ is Goi^oz^itf' witth tlie vlew^ «x.p7Fm»a«& in %tm oplnloia. In 
t$hi^ tb^ faots «,r«t S9t for^ at X«iiig:tii. iC@mfb9XX» «t &X» v» i-\Xb«iziSj^ 
9t &l«, .JI3 IXX* <sfp« X5a,) t;'<» iiaid tk&t tia» tru^t^^s w«k£« ast «&• 
titled to be on^lt*d "nith thei i^oodtt «iii4 fttoek &9&Uo»«d, or to ^&j 
f«ft8« &Gd tli« Opinion st&t»s th&t *%ha trust@>#8, t^i# li»<;l&l r«prtts«atti* 
tiT«8, I(»t«tw«s and dttTiso«s of t^ sur»ti«fi oii th«lr boM, m& t&« 
x-0O9ivar, ajr* 11^J&1» for Uu» full e^ou&t of tli# trust fuMs, wit^ iiitds^ 
•St at th& Idgel rat* fw&i^ %ik0 a:r«s£i#«itlv# diitott of tb&lr r«»o«ipt, exempt 
tli«t thft linbllity for i£Lt«7tt8t on th4» Wftb«r and thi» aoitli lo#si_;®» 
(7«sp«otiV9lr 6^ and 5^}» aM on lOie Lib^iSii^ Ho&dfi, ajoft ol^&r tK^nds 
of th«i ^nitfKi 5tBt«a, ^)ould b$ tl]i» aetttal a^aotmta rooeiv^S la t^ose 
lxmtfi]ie«»*** 

^^ti tli« r«a&adiii|| or<l«r «&s fllad in. the t?i&X eourt, %hm tru»t»«s 
filed 8<i it«sdLau»6 fi&Al report, «tbargl&e tli«£t»elv0« witt^ all &oiiey» 
received, «ith intereet at five per etnt per aumm from ^« reepeotive 
dates of reeeipt, with adjuetmtmts on tb» \te^er m>& tlie S2d.tli 1q»il«« 
fijQd the bonds of tl^ Uaited utetes 68 speoified in our lioldl&g, ^d 
•hcntlxm^ fi belaneee due ftppello&ta of ^X6,033*94« Hiereupoa, appell^ints 
fil^ a i»tioB for lettve to aMead t£ielr eompltiint, by iOBertliig £bfter 
%i» iiorda; ''pltia leijel Isterest o& ull fujtde fro^ the d&tee said m^^lmtt 
were deposited in eaid bttuK:'*, the words: *'eojsputed tsith anmuO. stops," 

ttud toy s4dlii£ to the lest peregm^, the toUmtiaat ''thtit the eourt isiii 
greixt auoh other aM further relief &s eiuity kms rsiuire*** the i^tioi^ 
«Mae denied, end the eourt tMstered « deeree approviJiiS the trustees* 
final report, end ordexlxig iwysaent to Kppsll&nts of the ^nount ftfataiwa, 
therein to \m due, with interest tvo& its d&te st the vatu of five per 
sent per snniau The grounds urged tor reversal &re ti^t the court 
erred in deayins l«ftve to ummaA the eoj^dlnt* m& in refUDliie to i^lon 
interest so^iputsd itittt «tnuuHl stops, or In O'^ier sorts, oos&peund inter- 
est* ;^ppellimts filed In this oourt u. aotion to diSAiss the Ofeuse as 






\;i'i ifec; i'-,.^ iiJO^il *d* (talix 






■^u m'. 



■fA 



, ton ftei^CdS « iteltt 



i?^ Ji^ j"i»/# e'^tef 



»!«,,.. .. . - . -,,-..■ 



ma to Otto c. m^ttvtT, &u9&9ti»9r 7»9«dir^f> ^f t&# hmnkp mlxh &. reeeipt 
for a oop7 ig^ei^of fre>@ tk« etto 2310:^8 for Sipp4»ll«ei@s , «iaS t&» .aotlcm eo% 
baizig r«aslfi%«4» is treated. 

fha cltULis t^^t tkii original do^plalnt. s^ @ur hoMlng oa. tl3i« 
foriacr ^^ppeal sr« ^ud<i«pti^l« of t^$ Oimntru^tioci t^t %h^ int&r&Bt 

I should b« 6omput9d »itfe j^nu&l iito|»9» Is so oltvlousOLr ^It^oiit fi^imda- 
tioa aji to n»«d i»3 furt)i»r eoiafsMit* Thtu sioticm for X9&v«i to &£^a4 

f/ r*eogni2»e thi» f&et tb£«t t3ai> ooicq^eitit pruf^ tor 0im|il« iAt«r»»t 
oociput«d ij3i tlie cardliu&x^ «^, &ad our holdl&s® follow ^at oXaiR with- 
out eft? ambiguity or ro<m for & diffttrtet i&t«jppr«t«ttio£L. fk'iit bold-' 
ifig was a flnel reviewable order. (Tonti of jieiievlll# v. M«ir9dil^» 3^>1 
III. 556, 563; Mltohall t, Kla«, 1«7 Id. 452, 45^457) Ho a|»f#*a wea 
taktMi ttuirefrcm, aad it la binding ui^a ttsio pnriiies, ttm trial o^^urt 
&Ad this oourt. (^set v. l^»ugl&e, 145 111. X64« I66| X'eopld ¥• i/ilits«r, 
301 id. 284, ZS7)* Alt}K>u^ tho ooffiplaifit %i&tt oouokod in th# l^n^u&i^* 
^uotod, %pp«ll«iate eont«tid«U on the 2^rB»r &pp«el, £tM it^ tlistir %>ri#fis 
on thi« appeal atiUiort t&&t tliioy &«vo filwiiys i^«i»ted t&esr ar« «a&tltlad 
to oospoimd int»r«Bt* Whore m e«i»e liaa teen decided on api>e&l, a&a Is 
brought up OQ & 9eomi(S &ppe<^, the only iuestioti for eousiderati<^ i« 
whether the trial oourt followed the aiaadate of the reviewing court. 
It oould aot 0TT if it di.6 to, (UQd the foxser apptt&l nettles evexar 
<iueetiofi whioh waft raised or eould have beea r&i#ed. {Coi^alsaioii^ra 
of Lineola Veixk. v. 'ohxaidt, 379 ill. 130, 132$ Kaudolph v. Hinok;, 2$$ 
id. 9^, 101{ uezuiinc v. adrld^e, I46 id. 305, }10.) 

The further elajjs thnt the ottleulatioit of the iutereitt, evexi on 
the basis of our holoina* i« ^4,245*2£i short of the oorreot asiouht due, 
is based upon aa erroaeoua assMsapticm of the tot«xi «ueiouitt of prii^aipal 
reoaived, uud if the cIoIk eas eutertRlued it would h&ve to be d«^ed, 
but it was not lUiised lu the trial oourt ao^ will not hn oonsidered. 
The oourt did not err in denying the s^otion for leave to g^tttid 
tim eoaplaint, the deeree wns in ooufoziBltjr wi^ the &2&tj:id&te of this 
eourt, tind is affiisMid. 

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Abstract 



GEN. NO. 9877 



AGEKTDA NO. 6 



IN THE APPELLATE 9?feRT OF ILLINOIS 

SECOmrDISTRICT 

'Aj A.D. 1943 



HAROLD KERN, WILL] 
L. ?/REN and Rimr WREN, 
>PELLEES, 

EARL HOWARD, 

APPELLANT. 




^"--. 




APPEAL PROM THE CIRCUIT 
COURT OP GRUNDY COUNTY. 



PER CURIAM 

This was an action by appellees against appellant 
for personal injuries received from a collision of an 
automobil© in iftiich they were riding, with the rear of 
appellant's truck. Trial resulted in verdicts for each 
of the plaintiffs, and the defendant brings this appeal. 

The accident occurred on the bridge across the 
Illinois river, at Morris. The evidence on the part 
of plaintiffs is to the effect that appellant's truck 
was stopped on the bridge near the crest or apex thereofj 
that no lights were in operation upon the rear of the 



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truck, and no flare, signal light, or other warning, 
placed to the reari and that because of the failiire 
in this regard, appellees had no notice or warning of 
the position of the truck on the highway until too late 
to avoid a collision. 

Appellant urges the evidence fails to show the 
exercise of due care on the part of appellees. This 
was a question in the first instance, for determination 
of a jury, and it appears to have been fairly and proper- 
ly submitted. They have found the issues in this regard 
against appellant. »Ve are of the opinion the evidence 
was sufficient to support such finding, if the Jury saw 
fit to accept it. 

Appellant also xirges that his negligence, if any, 
was merely a condition, and not the proximate cause of 
the occurrence, urging in this respect the doctrine as 
announced in Briske v. Village of Burnham, 379 111, 193. 
That case involved a collision with a barricade across 
a vacated street. Furthermore, the barricade was a law- 
ful obstruction, while to permit a stalled motor truck, 
to remain unlighted, at night, upon the highway, without 
taking the precautions provided by statute, is negligence. 

Appellant's contention that the verdicts are against 
the weight of the evidence is met by his first objection 
as to the question of negligence and contributory negligence. 
We are of the opinion the record contains svifficient evi- 
dence to support a verdict for appellees, in the event 
the jury accepted same. 

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Shortly after the accident, the driver of appellant's 
truck stated that he had run out of gasoline, and to 
another witness, that the truck had stopped and he was 
tz»ying to get it started* It appears he was in the cab 
at the time of the collision* Appellant urges the ad- 
mission of this evidence as error on the gz*ouni that it 
was no part of the res gestae* However, these statements 
had nothing to do with how the accident happened, nor were 
they in any way connected with the question of negligence 
or contributory negligence* There is no question but that 
the tznick was there, and the collision occurred* i^e do 
not consider such statements to constitute error* 

Appellant objects to his refused instruction # 1, 
his modified instruction #10, and plaintiff's instruction 
# 8* With respect to appellant's refused instruction # 1, 
it may be said that an instruction can embody correct 
rules of law, but not be a proper instruction under the 
evidence in the case* Vve are not of the opinion tiie Jury 
was in any way confused or misled by appellant's instruc- 
tion #10, as modified by the court, or plaintiff's instruc- 
tion # 8* 

It is further tirged by appellant that appellees' 
attorney made improper statements before the jury, which 
raised the presumption that someone other than appellant 
was interested in the outcome of the suit — thus seeking 
to inject the question of insurance into the case* V'e do 
not find the record quite sustains this objection* 

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The case would appear to be one primarily based 
upon the points first raised by appellant in his assign- 
ment of errors and receiving the most apace in his argu- 
ment, that is, a question of negligence* 

This is one of tiioae instances where the result 
of the litigation necessarily must be based upon the 
testimony of one side to the exclusion or rejection 
of that of the other. There is no middle grotmd. This 
rule both as to cases at law and equity, is well illus- 
trated in the cases of Shevalier v» Seager, 121 111. 564, 
568; and Carney v. Sheedy, 295 111, 78, 8Sj and cases 
there cited. 

It is the province of the Jury in the first instance, 
to determine disputed questions of fact. After a care- 
ful review of the record, we do not feel disposed bo 
disturb the judgments. 

Judgments afflmed. 



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appilllate court 

FOmTH DISTRICT 
May ijerm, A, D. 1943 



Term No. 43M7 

HEI'JRY MELTON, Administrator of 
the Estate of Fred James Melton, 
deceased. 

Plaintiff -Appellee , 
vs. 
JOHl'J HEATON and CHARLES DOOLEY, 

Defendant-Appellant . 

^/•^ 
STONE, J. 





No. 10 



Appeal from tn^ ; 
Circuit Court .d'f" 
Randolpli' County 




/ 



Hanry Melton, Administrator of the Estate of Fred James 
Melton, deceased, appellee (hereinafter designated as plaintiff) 
brought suit in the Circuit Court of Randolph County to recover 
damages, for the death of plaintiff's intestate, resulting from an 
alleged collision on June 9th, 19A-1, between the bicycle being 
ridden by plaintiff's intestate and the truclc of John Hea.ton, 
appellant, being operated by Charles Dooley, appellant (both 
hereinafter designated as defendants) . It was alleged by plaintiff 
that the truck driven by defendant Dooley passed deceased v;hile 
going in the same direction, on a state hard surfaced road, near 
Coulterville, Illinois, and that in passing the defendants so 
negligently operated the truck, that it struck the bicycle on 
which deceased v/as riding, causing injuries which later resulted 
in his death. 

Fred James Melton, at the time of his death was 31 years 
of age. Deceased was deaf and dumb but had apparently no other 
physical disabilities and an alert mind, and was employed at the 



1. 



time of the accident on a V/. P. A. project at Coulterville. He 
lived in Tilden V(?ith his mother, aged 6l, and two brothers, aged 
18 and 15. His mother had no income separate from his earnings 
and from April U, 19A.1, when he commenced working on the W. P. A., 
he paid the living expenses of the family group. 

At the time of the accident, approximately 5:40 A. M, 
plaintiff's intestate was riding his bicycle in an easterly direction 
on a hard surfaced road about two and one half miles west of 
Coulterville, on his way to work, as had been his custom. On the 
evening of June 8th, defendants drove the Heaton truck from West 
Frankfort to St. Louis, to the fruit and vegetable market. After 
Securing a load, they loft St. Louis about U o'clock the follov/ing 
morning. On the road between Tilden to Coulterville, Heaton was 
asleep, and Dooley was driving the truck in an easterly direction 
at about 30 or 35 miles an hour. Plaintiff's intestate was riding 
his bicycle ahead of the truck going in the same direction and was 
about two feet from the south edge of the slab. VJhen Dooley got 
up close to the bicycle he started to go around it. He claims 
that he drove the truck so that it was astraddle of the black line • 
After the front end of the truck passed plaintiff's intestate, 
Dooley says that he heard a popping noise. He drove ahead and 
onto the shoulder and stopped. The stopping of the truck awakened 
Heaton and they v/ent back and found plaintiff's intestate lying 
on the ground, off the slab, bleeding on the side of his face, and 
unconscious. His bicycle was lying along side of him, also off 
the slab. He was taken to Coulterville, v/here he died. It was 
stipulated that deceased died of head injuries sustained. 

The case was tried by jury, on amended complaint and 
ansv/er, and the jury found for plaintiff in the sum of $3650.00 
and this appeal is prosecuted from the judgment entered upon that 
verdict. It is alleged as error relied upon for reversal, that the 
trial court erred in refusing to direct a verdict for defendants at 

2. 



the close of plaintiff's evidence, and again at the close of all 
the evidence; that the court erred in giving certain instructions 
in regard to damages, and that the verdict of the jury was not based 
upon the evidence, but was the result of passion and prejudice. 

It is contended on behalf of defendants, that there was 
only one person, defendant Dooley, who could throw any light on 
the death of plaintiff's intestate, and that there v/as no evidence 
offered by him or by any other witness to show that death v/as due 
to the actual negligence of defendants. It is the theory of 
defendants that the accident v>ras caused by deceased grabbing hold 
of a chain which hung suspended from the rear of the Heaton truck, 
and in furtherance of that theory, offered the evidence of the 
v/itness Lesley Standard, former captain of the Illinois State Polii. " 
who testified that he examined the truck and that there were some 
finger marks around where the chain hooks up on the side, but that 
he did not take prints of the finger marks. Defendants claim that 
the jury could not possibly have arrived at their verdict v/ithout 
speculation and conjecture. \/e are of the opinion, that the jury 
would have been venturing far into the field of speculation and 
conjecture, to have believed thct plaintiff's intestate was killed 
by his grabbing hold of this chain. Defendant, John Keaton, v/ho 
was the ovmer of the truck testified that at St. Louis he hired a 
colored man to Iv-ad the truck. The jury could very well believe 
that these unidentified finger prints on the trudk v/ere placed 
there at the time that the truck was loaded in St. Louis, in the 
absence in this record of any evidence to the effect that plaintiff's 
intestate, grabbed or attempted to grab the chain on the back of 
the truck. 

The jury could very well, and probably did take into 
consideration the testimony of defendant Dooley to the effect that 
they had left West Frankfort at eight o'clock on the evening of 
June 8th; that he had only two hours sleep, lying down in the truck, 

3. 



Then follows his description of his fight to stay awake, "I washed 
my face, because I was sleepy — I drank a coke -- I had a cup of 
coffee to keep from going to sleep — I stopped at Freeburg and 
got some more coffee -- I stopped two or three times in all. I 
wanted coffee — I wasn't sleepy exactly, but I wanted coffee to 
keep from going to sleep — . I am pretty sure we stopped at Tilden, 
I got a cup of coffee". These were matters that the jury had a 
right to take into consideration in determining the alertness of 
the driver of the truck at the time he passed the plaintiff's 
intestate on his bicycle. 

The record shows that the bicycle, when found, had the 
left handle bar completely broken off; that the rear fender had a 
dent below the luggage carrier; that the luggage carrier was bent 
up toward the seat, and that the seat was turned sideways and therf 
./as a mark across one side of it, "like something had cut a straigix: 
mark across one corner of it". Plaintiff, who was a brother of 
deceased testified that when he arrived at the scene of the acciden" 
there was a small spot of blood about eight feet from the edge of 
the pavement on the south side, and that there was a place at the 
edge of the pavement where it looked like something had slid tov/ard 
the blood spot. Defendant Dooley admitted that he testified at the 
inquest, "I might have sideswiped him, or he might have grabbed the 
chain," 

While the v/itness Standard testified by way of conclusion 
that the examination he made of the truck did not disclose that it 
had been involved in an accident, and had no marks on it, the jury 
v/ould have a right to consider that it would not require much impact 
between a truck loaded v/ith oranges, lemons, apples, grapefruit, 
v/atermelons and cantaloupes, driven at thirty or thirty-five miles 
an hour, and a bicycle which is kept on the road by virtue of the 
rider maintaining his equilibrium thereon, to have caused the damage 
to the bicycle shown in the record, and still perhaps no tangible 

4. 



evidence of such impact be shown upon the truck. 

V/hat is the proximate cause of an injury is ordinarily 
a question of fact to be determined by the jury from a consideration 
of all the attending circumstances. Waschow vs. Kelly Coal Co, 
2^5 111. 516; Illinois Central Railroad Co. vs. Siler 229 id. 390; 
Pullman Palace Car Co. vs. Laack 11,3 id, 242; Martin vs. Village 
of Patoka, 305 111. App. 51, There was no eye-v;itness to the 
accident, but the manner of death may be proved by circumstantial 
evidence. Economy Light and Power Co. vs. Sheridan, 200 111. A-39; 
Commonwealth Electric Co. vs. Rose, 214 id. 545; V/aschow vs. 
Kelly Coal Co. supra. From the facts and circumstances proven it 
could fairly and reasonably be inferred by the jury that the 
accident was caused as alleged in the amexided complaint. It is ro- 
the province of the appellate court to substitute its judgment for 
that of the triers of fact v/herc there is a conflict of fact. 
Ivlartin vs. Village of Patoka, supra. Vve are therefore constrained 
to hold that the trial court did not err in refusing to direct a 
verdict at the close of plaintiff's testimony and again at the 
close of all the evidence. 

It is also alleged as error, that the trial court erred 
in giving an instruction requested by plaintiff, which told the 
jury, " *** In such case it is not necessary that any v/itness 
should have expressed an opinion as to the amount of damage, if 
any, ***", This instruction pertained only to damages, and 
as stated above it is not assigned as error or argued that the 
damages awarded v/ere excessive. It has been repeatedly held that 
evidence or instructions going to the measure of damages where the 
amount is not questioned as excessi\^e, will not work a reversal, 
because errors therein, if any, are harmless. Reisch vs. People 
130 111. App. 164, aff 'd. 229 111. 574; Semrau vs. Calumet & S, C. 
Ry. Co. 185 111. App. 203; Hutchinson vs. Chicago City Ry. Co. 
192 id. 464. Garner vs. Ry. Express Co. 274 id. 626. We do not 

5. 



find it necessary therefore to discuss the above errors relied upon 
for reversal. 

Neither the size of the verdict, nor any of the testimony 
lead us to believe that the verdict was the result of passion and 
prejudice on the part of the jury. Finding no reversible error 
in the record, the judgment of the trial court will be affirmed. 

i-J'FIRLIED. 




JUL 10 1943 

CLERK OF THE APPELLATE COURT 
FOURTH DISTmcr OF ILLINOIS 

Abstract 



6, 




Term No. 

MYRTLE CURRIE, 

Plaintiff -Appellee , 

vs. 

A. F. CURRIE, 

Def endant-;^pellant . 
/ 
CULBSRTSOK-f P. J 

This is an appeal from a decree of the Circuit Court 
of Madison County, by the terms of which JylYRTLE CURRIE, Plaintiff- 
Appellee (hereinafter called plaintiff) was awarded a decree for 
divorce, alimony of |A.0.00 per month, and attorney fees in the 
sum of $150.00, against A. F. CURRIE, Defendant-Appellant 
(hereinafter called defendant) . 

It appears that the original complaint filed in this 
cause on April 1, 1941, v/as a complaint for separate maintenance, 
and later the Complaint was amended in the prayer thereof and 
the divorce, alimony and attorney fees v/ere prayed for. The 
complaint in this case was verified, and to same was filed a 
verified answer. The verified answer of the defendant contains, 
with other language, the following: "Admits that on the l/!^th 
day of October, 1939, plaintiff and defendant were lawfully 
joined in marriage and thereafter maintained conjugal relations, 
until the 5th day of February, 19^1." On June 25, 1941, defendant 
filed an amendment to his ansv/er wherein he sought to deny the 
legality of the marriage that he previously had stated, under 



1. 



oath, was legal. 

On June 27, 19-41, evidence on part of both the plaintiff 
and the defendant was heard, and at the close of the cross examina- 
tion of the defendant the Court asked, "Mr. Currie, you are 
married to her, aren't you?" and to which query by the Court the 
defendant herein answered, "Yes, sir." V/hereupon, the Court then 
said to Mr. Currie, "What does this mean, the amendment denying 
the marriage?" V/hereupon, counsel for the defendant answered 
and said, "There is a question there about this svrarn testimony 
in January, 194-0, v/here she testified at the time of the accident 
on May 6, 1940 he was her husband. That was the purpose of it," 
The Court then said to Mr. Schuman, "You don't make any issue of 
that now, do you?", to which Mr. Schuman replied, "That was the 
only reason at that time, that testimony. I understand that 
they v/ere married at Henderson, Kentucky in October, 1940. That 
is the only purpose of it." The Court then made the very pertinent 
observation to plaintiff and defendant that "they were old 
enough to knov; their own minds and that they v/ere making a mistake 
litigating, and that if they couldn't live together they ought to 
be divorced, and that if they could live together they should be 
doing so, rather than being in Court." After this conversation 
betv^reen the Court, the attorneys, and litigants, counsel for 
defendant stated that if something could be v/orked out along the 
linos of a reconciliation, that he v/ould prefer not to put on more 
testimony at that time, to which the Court agreed, and the cause 
was continued. The efforts for reconciliation appear to have 
failed and the remaining testimony in connection v/ith this case 
was heard by the Court on January 28, 1942. 

On March 20, 1942 it appears that leave was given 
plaintiff to amend her complaint by changing the prayer thereof 
and asking for divorce, instead of separate maintenance. No 
objection appears to have been made to the amendment of the 

2. 



complaint being made, or the filing of the amendment pursuant 
to the leave granted, and it may be fairly inferred from the 
Record that counsel for defendant knev/ of it. On September 30, 
19A-2, after the amendment to the complaint had been made on 
March 20, 1942, and all the evidence had been heard by the Court, 
and the matter taken under advisement, defendant appeared in 
Court and asked leave to v/ithdraw his answer and to file a motion 
to dismiss the case upon the alleged illegality of the divorce 
obtained by the plaintiff from her former husband. Plaintiff 
herein filed a motion asking that the motion of the defendant to 
withdraw his answer and for leave to file a motion to dismiss be 
denied and stricken from the files, and an answer v/as filed 
thereto on November 25, 1942. The Court denied defendant's 
motion to v/ithdraw his answer and for leave to file a motion to 
dismiss. 

It is urged on this appeal that the Court committed 
reversible error in denying defendant the right to v/ithdrav/ .his 
verified answer hereinbefore referred to. We have examined the 
motion and affidavits presented in connection therewith (said 
affidavits being filed by leave of Court after the decree had 
been signed) , and certain counter-affidavits filed in opposition 
to the allov/ance of the motion, and from an examination of all 
of these, and giving proper consideration to the orderly dispatch 
of business in the Courts, vie cannot but conclude that the 
eminent Chancellor v;ho heard this matter (in a very thorough and 
painstaking manner, as the Record discloses) was and properly 
should have been vested with a very wide discretion in this 
matter, and v/e cannot say that he acted in any way aribtrarily 
or unreasonably, but, on the contrary, we believe his determination 
of the matter was right and just and proper. 

A further point is made that the Chancellor committed 
reversible error in not ruling the defendant to plead to the 

3. 



complaint as amended. The record discloses that there was 
nothing questionable done in this case, that everything was open 
and known to counsel for both plaintiff and defendant, and we 
must hold that counsel for the defendant, after having participated 
in this matter at various times before the Court at and after 
the time the complaint was amended, has waived any right to now 
complain and assign as reversible error the fai].ure of the Court 
to enter a rule on the defendant to plead to the complaint as 
amended. 

It is further insisted on this appeal that the Court 
committed error in granting a divorce as the evidence was 
insufficient to constitute grounds for divorca* V/e have examined 
the record in this case with great care and the evidence that was 
produced in support of the charge of extreme and repeated cruelty, 
■.ve believe, meets every requirement that would warrant a decree. 
It could serve no useful purpose in this opinion to undertake a 
recital of the various acts of cruelty proven in this case. 
Cruelty, under the Divorce Act, means to be subjected to physical 
abuse, and although the defendant denies the acts of cruelty 
testified to by the complainant and two other v/itnesses, the 
Chancellor's finding in awarding a divorce on that ground v/ill not 
be disturbed on review, unless it is against the manifest weight of 
the evidence ( BERLINGIERI vs. BERLINGIERI , 372 111. 60). This casn 
was heard before a Chancellor, and we believe that the Chancellor's 
finding, as same is reflected in the decree, is not only not 
against the manifest v/eight of the evidence, but that same is 
abundantly supported thereby. 

Various other assignments of error are made, all of v/hich 
have had our careful consideration, and v/e must conclude that there 
is no reversible error in this Record, and the decree appealed 
from is, therefore, affirmed. 



Abstract 



JUL 20 1943 

CLERK OF THE API'ELLATE COURf 

FOURTH DISTRICT OF ILLINOIS 



Affirmed, 
4. 



42187 I 

HELEN* REICir^IN, as Trustee undar the O f«^ ±«A»/i%? O ^ 
Last Will and Testament of Christina 
RsiGhwein, Deoeased, 

Appellant, 





JULIA R, McCarthy (RobwelHIs, Ountei^ei^ 

Aay Guntertoerg, hla,.«lTe, Lawndale Natlon«i*^*^fe««*" 






MR, JUSTICE KILEX DELIVERED THE OPINION OF THE OOUB*'. ^-- 
Thifl is a foreclosure proceeding commenced by plaintiff 
uoon one of two mortgage notes. Defendants counterclaimed in fore- 
closure on the other note. The final decree ordered foreclosure 
and sale upon the cross-complaint vith priority in favor of cross- 
plaintiff, and plaintiff appeals, 

Julia H, McCarthy executed Note A for $500,00 and Not* • 
for S2, 600,00 due October 18, 1930 and 1932, respectively, payable 
at the office of John A. Schmidt k Co,, Chicago. She conveyed 
real estate in trust as security, Schmidt St Co, sold the notes to 
Robert Gunterberg, who at maturity sent note A to the Company for 
collection. Shortly thereafter the Company mailed its check to 
&unterberg for interest and subseouently a check for the principal 
sum. It appears that the Company did not receive payment on that 
note from the maker, but had advanced the sums and entered into aJi 
extension agreement with the maker under whioh the maturity date of 
the note was extended one year, during i^ich the isaker was to pay 
monthly -^50.00 on account of the indebtedness. About October £9, 
1932, plaintiff received the note in settlement of her accounts with 
the Estate of John A, Schmidt, one of the partners of the Company, 
Plaintiff filed her suit on default in payment of Note A and taxes 
and declared the entire indebtedness, under the Tmist Deed, due, 
&unterbergshad no notice of Oefault in the note until suit was filed, 
fmr they assuaed it had been paid and canceled.. 




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2 

Gtinterberg and vif© In their answer deny plaintiff's owner- 
ship of Note A* th£t it was unpaid and outstRnding; and plaintiff's 
right to declare Note B due, I^helr counterclaim orayed for foreclosure, 
Robert Crunterberg'e amended answer asserts that Note A was extinguished 
and that plaintiff ^raie a holder after maturity, by virtue of the 
settlement of her accounts, and after the note was extinguished, A 
■peolal reference was ordered to determine whether Note A was paid 
and extinguished, subordinated or canceled, and to determine plaintiff's 
rights* The master found Hote A was subordinated to B but that plain- 
tiff had a right to institute the proceedings. The chancellor ovez*- 
rul«d objections of both parties and entered a decree according to the 
master's recommendations* Plaintiff appealed and this court ( Reiohwein 
▼« McCarthy. 300 Ill« App« 237), dismissed the appeal on the ground 
that the decree was not final and not appealable. The cause was there* 
after referred to a master for final hearing and, after successive 
references, upon his recominendation the court entered a foreclosure 
decree finding that Note B with its interest, costs, fees, etc,, had 
priority over Note A and ordered the sale of the premises* 

The vital issue is whether Note. A had been paid and 
extinguished before plaintiff acquired it« 

Plaintiff and John Schmidt were co-trustees of the Christina 
Reiohwein estate. Note A was received by her from the surviving partner 
of the Company in part payment of Schmidt's debts, arising out of the 
Reiohwein Estate, approximating fS67,000, At the time she received Note 
A, the extension agreement was attached. She says she did not know the 
note had then matured and did not examine it or the extension agreement 
to determine the maturity* 

Interest was paid Gunterberg October 20, 1950, having been 
received by the Company from the maker. Interest was also paid for the 
next period ending April 18, 1931, and 187,60 was remitted to Gunterberg 
on Note B and $17,50 retained by Schmidt & Co, on Note A^ The extension 
agreement bears the signature of Sohaidt 4 Co., agent. 



s 

9*t1ttml»Iq ban ;3|iilfe«fi:reJi/o &«« £!«€?«« s&m il i.idS {A s^qK Ic qliii 

f>»dei«gKi^x» saw a &tti^ Jarif eJieesj* -swwftflLs &«*«»«« u'g^XftcJitsJiWG *«iecfofl 

ft. ,>jfi£i»iu^al$x9 »sm »^c£t eri^f t^1iX& htm f8;?mrooe« lexl lo ia^mBlti^a 

e'ttiJnisXo enlaf*£ojr«»& ©;? Sttm ,JJj®X«>««swso *e ?»«ira«iB*rotf»» ,btitiiai«sn'^^3t» J^a« 

-<««¥o «3oXXeo{^iio exfr ,BSfiiM»a<nq »i^^ RiTirsri^sfsii: cd^ ;^£ls^*x e 6s^ Itif 

ai»fgtei<IT ) $iift$Q Bti&t bna Si9SM&qq» t\linlAl% ««£rcX;t^i!»sAO08n a^ie^ajui 

fimio^a «ri;r no XsegqA »rl? £>«8fti«iMjfr «(VSS mq^ ,1X1 DOS >Tdlflt^.oM ,▼ 

*«rs«4t se'# sexrjao. adT «.«X€(aXa»(|qa tQa htm X&nil ifcA ssir 9fno9b Bdi :SAJii 

i9athi&q :siciviv<2&8 Si^t so*3c% «£«ii x^ Bsvi^oen saw A •tfoM «»;^a^«^ ixie^iXioIaH 

«;tot? fistrl»09<t tila e«l? 6ji1;I ^a ,000 ,Vd^ ^ttl:fSimJi-K.{»nqm ^9i»i»^ aiewdolsH 

•£(i wofl^ ;ren biii «rie sxaa &i^ «&»il04ift« «sw ^amm^^a aoi«ii«^x« tJdJ^ ^ 

9ii9e«»i:g» iiK0ien9;:fx» edtf lo ^i »nlKmi» io» Mh ,bst» &«*ti/^jsfH ji»iU b»d •toji 

^'^^iiMSTaiD 9Xi;t •nlono^rvfi ot 

iridcT'SietfmfO o:r b&ittlmt Mm m»^9$ bam ,XSeX ,«X Xinc?^^ s«X6«9 fioli«<i *x»n 
v^nft^A ««oO A ^djUtrloa to 9iuiMa^l9 tit •i»9d #n«a««^4ii 



3 

^ It is clear under the facts here that Schmidt & Co, received 
the note for collection, and not as purchasers, for Gunterberg said 
he sent the note for '^^feo^^ and there was no oounter-testimonyj 
that there was no agreement between the maker and Schmidt & Co, to 
advance the money since there ie nothing in the extension agreement, 
signed by the Company as agent, to Justify the Inference; and further- 
more it could only have been Ounterberg»s agent and the transaction 
contradicts its authority for any such agreement, nor could any such 
agreement here defeat Ounterberg'e rights* The Comoany had no authority 
to advance the money, and, accordingly, was a mere volunteer and 
because of its advancf the note was paid and extinguished* Bennet t v* 
Chandler. 199 111, 97, Plaintiff has no greater right than the 
Company, Plaintiff seeks to distinguish the Bennett case on the ground 
that there the notes were not "bearer* notes, while here the Note A 
is "bearer" and title passed by delivery; that in that case the notes 
were stamped for collection only, while here there was no such stampj 
that there the notes were presented after maturity and here 11 months 

"iprlor to maturity; and there the suit wae by the house of issue and 
here by an innocent purchaser for value, Gunterberg's testimony refutes 
any possibility that title passed by delivery; his uncontradicted 

""IVstlmony that the note was mailed for (glleotlg&> is as effective as 
the stamp in the Bennett case; Gunterberg was not bound by the extension 
agreement and he presented Note A at maturity; and since the note was 
sent for collection, the Company advancing the money x)ald the note and 
it was extinguished and plaintiff cannot be an innocent purchaser 

thereof for value. 

In her reply brief it appears that plaintiff stands on the 
ground that Schmidt bought the note, not paid it, and that he was a 
holder in due course; thxt plaintiff obtained the note from him in due 

course and is a bona fide holder and owner* The only evidence upon 
the transaction is the testimony of (Gunterberg who denies a sale and 



^ 



5 
fisrieoe*! , TblmAoB ^arfff &n9d. 9t9&\ «riJ t9bau n&9lo ai *I 

bi&& •gtBdnstassQ •sol: »8t«Sfiuici^-.- 03 Shs ,aolJo«XIoo not 9toa Bdi 

o? .oO A J&iisjiafi i>iis -xsatiffl •jaU? fi®»v*9cf JafUMftiga on «iBv »ntfllJ Jed* ', 
4,f«&«o9'x^s iioian«txe iMS ai ^nl&tQa si •^ssiiir ^onia ^^noa ©xl* 9oa£v6« 

{xei^dsecus^if •c[# fina tawge •'j^tecHstmrC nssd jBT«d fine Blsroo ti fnom 

fina Tft«JmjXov ^lejii s saw ,t-Cs«'t£»'s«>oa« ,l>na ,x»«o« eriiJ 9oaBr.b» oi 

«v .^J^angS .Ijsiiait/^nilx* ba& bi&q n^^r 9toa sdi sstwrA* nil to ssweoecf 

»rf;r naxTit Jrisii -suJBSia on asii tli^nisl^l .VG .HI eei ,i8XJ6nadO 

6miofEB ©ri? a© »3ao t^ettftsa sd? i:i«itfsfli;f«i6 oJ a^iest tlUnlaX*! .in«q«oO 

A ©toK e/ij 9f»ri 9lldk ,»©?ot! "^srifi^cf* ten ei©w a«Jon »ri* e*t*d;r J«d* 

afiJca fJrtJ «»«o ?i(d* «i ifstJJ lvt^riS9b xd b9B9»q •X*iJ jbna ■le^aecf* si 

Sqatete dous ojs nAv ©i«n;t «ti»xi sXiiiw ,YXno noi^rosXToo icl fc*G«BJfl •ntew 

b9$olbaiincoau aid jv^svlisfe trf ^»Ba«q ^IJli s?ijii t*ii^i<JX8»cp xn« 

aoXen&ifx© Mdi i^ kayod J .jistfis^nwO jeeso Ji^annaQ 9AS al cmatB 9Ai 

SA* 9iQa »ilJ a©«t* .&'ns (t?X*£*f*«E *« A eJoM b9tfl«9«iq «jl 6ns tn9m99t^M 

baa eJofl 9ri;f fiific x9iiom #ri* ^nlonavfe* tn«q»oO »riJ ,noi*o»XXoo 10I Ja*a 

•xfR^ft^tfq f£i«ooftf!. ;roniiAo 'niialMlq baa ftftrfaXwani^x* bjiw »i 

«©ifXBr lot tottrtoxl* 
dri? no 8l»«i»;rB tli^TflieXq :r^;f eiseqqs #i tsHd xXq«n lari nl 
i tf«v 9d tsrir fttts »»i fiiaq Soa ,9Jort e.ff;r Jriswocf JJblffrioc? tSiJl^f btwom^ 
9vb ai BiXri t^o^t »Jorr tffit fi9fli.«ircfo tlUnlaXq t-uit ;««twoo wufc ni laftXoil 

«eqtf •oj*«&ivs YXno ©dT ,i»nwo ftim is'cloii •bit ancxf s ai btu scivoo 
6n« eljsffi A 89in«lf> oilw ^iid*s9JnuO I0 tnofflX;f»«* 9dS «i noXirossaait •!!* 



6/t/-^^>*-*/. 




^tacfp the Company was his agent for collection, fhe only finding and 

order Justified ie that there waa no sale and that Bolmidt did not 

purchase, but paid the note; that, paying it as he did without authority 

he was a mere volunteer, and the Bennett case applies. The extension 

agreement cannot help ochmidt'e position and plaintiff has no greater 

right. 

Plaintiff says that undoubtedly Gunterberg presented Note A 

to Schmidt and requested payment; that the maker could not pay; that 
the note vas extended and, Schiaidt & Co. to accommodate &imterberg, 
purchased the extended note. The cases of Howard ▼, Burns ^ 879 111, 
288 and Raliance State Bank v, Zjsook. 222 111, Aop, 610, and the 
argument advanced by olaintiff to resist G!^ulterbe^g' s contention that 
the Comoany was a mere volunteer, are not applicable to the factual 
sittiation here and the only testimony in the record is that the trans- 
action between the Company and defendant was not a sale. 

Plaintiff admits the Bennett case is good law, but claims it 
is not applicable here because the facts are not the !f?ame and that 
Mote A was a negotiable instrument, subject to the Negotiable Instruments 
&aw. Again we refer to the undisputed evidence proving that the 
instzounent was not negotiated. It was sent to the Company for collection. 
She further contends that in the case of negotiable instruments 
endorsed in blank, titles pass from hand to hand without the necessity 
of formal attributes of a sale* This contention disregards the 
evidence of Gunterberg* s intention. Plaintiff does not stand on 
subrogation, but on a sale, Since there is no evidence contradicting 
^unterberg, we hold as a natter of law that there was no sale« The 
note, therefore, was paid by the Comoany as a mere volunteer and when 
paid was extinguished and, plaintiff having no greater right than 
the Company in the note, had no right to institute the suit and her 
complaint should be dismissed. We need consider no other points 
raised^ 



Krr^ssk^ v.- ^^viX, XS--»XAKi„^ ^ 



j6jt» j^ihMtt Xiao »iil' ^ttQti&nlloe lol ^fti»i£ sfri saw lEnaqneO eii^ 4\Ki^ 
vtoir fcl© Jfclrp;^©* f Wl^ liifis ©fas dxr «kv , bel'ttiaul ^»Mo 

X^lioflS^lfB J«ori:ifi:v bib 9ti aj9 tl sni'\{;«c' ,*«itt jston ©a# Bijsq *«c{ ,88ail(W«q 

/; aJoM, j&»3a»«©iq s*^s*[Ti«!ir«4r& XX&e?£jiiroi>is» *.tj4« «'c«9 ttlA^la^l 

«ii? &as ,ois .cqa ,xii sss ,j£fia|§, . ^^MLMm&UMl J>tit^: P^K 

lAMto&J ®ilJ o? «IcfftOilqq« Sob ®i» ^*t9titmslor «•!©» « aj»w xiaqKoO «ri* 

JX aaXftXo i"w«f »waX 6oof ei »8«o ,;f;^^f}n96 ©rU aiTlfliba ttii^flXBl*? 

imsi3 bsis 9ffi^^>'i ei1i^ ^ca i»*is nio^t &{iii »atfjsD«cf »i<»xi nldBOlLqtyi ^ofl •! 

•fJMiRftr'z^aiiX sXd<»X:fo:ii«sf @il;I' <s9 tfkftldm ^in^smiisni Bldg.lSo-g^n m efv A «?oR 

*il? JailJ gflivoiQ «ofl«bXY» 6«yuq«X5cif ^ ^'*«'' »v flXs^A j*in|4 

«ra«t^odXIeo tol xnsqsoO 9[i3 ot ia9B ts^ }l ^b^-J&lio^oa t«f| cjiv tnaininltnX 

ii| Bta^muiintii eldsX^oigefi to 9«eo «e(J nX S.^tii iJ^n^tJfeo T9£ltiyt siiia 

^;rXaaf»09A ^3 SaoAitv bn^si ei bUHti teicnt 8«eQ a^XifX^ «:4n«Xcr nX £>eBio6n9 

•ritf 8li.*xjes8'S8/5 noiJiisyfloo isiriT •eXJee a to 3»*tfdXaJ*4 Xsancot t^, 

Jio feiiitJs Jcfl eaoi> IttialRli ,floX^fl^?nX a 's'xedn^^awO to eoasfiXra 

^U&ibsriitioo 9i>at>blr9 oa aX ais^d^ «o«X3 »GX^a jii nc v^ud ^no t:i s^^^dUB 

•rl ; , * on ««¥ «»*i©ilJ tsrf* w«X to i9>iJna a t» ftXoii »w ,2j*r»dia;fiai* 

flwjclv £>ae naa^rfwXoT anaa a a& tn«q«ftO aifir X'^ blnci «.3W (fttotv^axi^ t*^^ 

nmJli td-$l^ "sa^Aat^ qxi ^Xvmf ttX^aXeXg ^baa ^^titaXiif^nX^xa bav tXAq 

fA bOA Slu9i fnii aiTjif^X^feaX ot ^rii^ii on £!.<<ui ce;toa utiJ nl xOMCffto^ t^4$ 

a^nXoq tnjitQ OJI t^blBaeo £esii aV •JbaaaXttoXfi ed I^Xuoxia d-nXaX(^oo 

«t«8XAn 



5 

The decree is reversed and the cause Is remanded with 

dlrectlone to enter a decree consistent with the views expx^^saed 

herein. 

miGfmE REVERSED AKD CAUSE REMANDED WITH 
DIREGTIONSe 

Burke, P.J. AND HEBEL, J. CONCUR* , .l 



6 



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3 ^o A- =2. 3 >; 



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S'W^IoA. 23 8 



^ 



Gen. No. 9872. 



V 



.r 



IN THS^ 



\ APPELLATE COJ^T OF ILLINOIS 



'\ 



X, 



X SECOND DISTRICT 
MAT)feM, A. D. 1943. 




JOHN M. l-i^BOR, 

"Plaintiff -Appellee, 




JOLIST DOC^/ COMPANY, an Illinois 
Corporatigfii, 

/ Defendant -Appellant. 



Agenda No. 4. 




Appeal f-aipm 
Circiilt &"6^rt. 
Will Co-unt';5h»»,^ 



^"^i. 







/i 



(■■ 



WOLFE,— J. 

John M. Tabor started suit against the Joliet Dock Company 
in the Circuit Court of Will County to recover damage to an auto- 
mobile resulting fro:;i a collision between a truck owned by the 
appellant and operated by their agent, and the automobile of the 
plaintiff. Tabor. The collision occurred in a public street of 
the City of Joliet, Illinois. The case was tried by a jury of 
six, who rendered a verdict in favor of the plaintiff. Tabor, in 
the sum of v220.97, for which judgment was entered. 



i«*'% 






joa TaijoL 



.a-dJOw 



:©ffis£)ij-t riolriw <iol ,VG.02S$- lo nine &di 



2. 

The defendant entered a motion for judgment notwithstanding 
the verdict, and in lieu thereof, he tendered a motion for a new 
trial. Both motions were overruled by the Court, and it is fron 
the judgment rendered in favor of the plaintiff, that the Joliet 
Dock Company has prosecuted this appeal. 

The appellant alleges that the trial court erred in not 
granting their motion for a judgment notwithstanding the verdict; 
also in not granting the motion for a new trial, because the evi- 
dence was insufficient to sustain a verdict in favor of the 
plaintiff. The evidence of the defendant's negligence is not as 
clear and convincing, as it is in many cases, but the case was 
submitted to a jury for its consideration, and a verdict was 
rendered in favor of the plaintiff. We cannot say that this 
finding is against the manifest weight of the evidence. 

The other error complained of, is that the Court refused 
to give one of the defendant's tendered instructions. The first 
part of the refused instruction is as follows: "The Court in- 
structs the jury as a natter of lav; that if you believe that the 
defendant, by their agent and servant, was operating its truck 
at and just before the time the collision between the truck of 
the defendant's and the automobile of the plaintiff in a lawful 
manner, and that the accident would not have occurred except for 






Ic -HO J 



'i-rr r-irifi f-f ri; 



5'=>^oiq aail •^fnaqflioO ■>>o(T 



R ! I a,--nfl flrlT 



:fio 



.:fa 



Tf. PijriP fin 






3. 

the negligent act of a third person, then the jury should find 
the defendant. The Joliet Dock Company, not guilty even though 
the plaintiff, John Li. Tabor himself was not guilty of any 
negligence. The raere happening of an accident in itself does not 
in any way necessarily mean that the Joliet Dock Company was 
guilty, and before the jury can find the Joliet Dock Company 
guilty, they must find that the truck in question was operated 
negligently and that it was the proximate cause of the accident 
in question." Appellant states that the saine instruction v;r.s 
given in the case of Lehmann vs. City of Chicago, 261 111. App. 
650. This is an abstract opinion, and we do not have the facts 
of that case before us to see why such an instruction vms 
applicable. 

The appellant has also cited several cases that hold 
that instructions relative to collisions being purely accidental 
are proper, and the defendant was entitled to have the jury so 
instructed, and cite Bentkov/ski vs. Bryan, 299 111, App. 217, 
No doubt this is the law, but the vice in the tendered instruction 
is not that part which relates to a pure accident. It does not 
comply with the pleadings and proof in the present case. To be 
applicable, it should have follov/ed the instruction as in 
Bentkowskl vs. Bryan, supra. This instruction as presented 
reads: "if the jury believe that the truck of the defendant 
v;as beins? driven in a lawful manner. " There was no instruction 



;Iq erfd- 
v.tLv.en 



■naqinoO 5focG detl-''. - 

.::rr'oI ;■ eawBO si.'?m.?xo'ic di£t asv .tl vis ;-'t;ir^9n 

.cq^ .lii iOii. ^ogi : ■■fiBmisJ lo 85*3 orfa nl nevlg 

.i.-or:. erft svsrl *Ofi o£> 9w brua ^noi:ai<5[0 :tOBtct'adB me 9f alrfT .069 

.-= I ;'.30ilqqfl 
I>Ioil d-Brtd" 8S8B0 iBisvse £>acfIo osla sen .-tn.c 
.ir:;Jn9J&looja •^Xeiwq anled eaolstllu Ldosj%i-c 

sc" oT .aai3o j.aoa&-:q stIj ai looiq L. - '.tlw rlqmoo 

::i SB nolctoi/icfeni ©ri;J JbewoIIol evBxf blr: -,.0 

i>9jn9e©iq 83 npIiomct8«l. eJ^rflT ,««xq«r8 , ijZewojiJneS 

&nBbaol9b srii lo jfomi erf;* iadi evellecf ^iwt erf;* 11" tsbson 

notioutiznl on asw ©isxJT " .lexirusiE Ix/lwal « ni nevlib sni©d bbw 



4. 

given to the jury explaining to them wloat is meant by "lawful 
manner." If the instruction had been, that if the driver of the 
defendant's truck was operating it in a careful and prudent 
manner, or was using due care in the operation thereof, then we 
thinl: the instruction would have been proper, and no doubt the 
trial court would have given it. 

The Court did not err in refusing to give the instruction 
as presented. \'ie find no reversible error in the case, and the 
Judgment of the trial court is affirmed. 

Judgment affirmed. 



iiii ,,nee .•lenruani 

->Ix/ow d"XJTOO I«lii 

' ■:'T 

,b&mri±'X'is: '.©nxgJtj^t 



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3 2 01. A. as 9 



Gen. llo. 9878. 



a llo. 7. 



\ 



^^' 



III THE 

toELLATE COURT OF IXrf^ilNOIS 

\ y 

X^ SECOND DISTRICT. 

MAY TSEiM.^. D. 1943, 




ROBERT DAVIS AIJD "^LIAM G. 
HAKDEL, y 

Pljantlff s-Appellees, 



EARL 




AUPT, 

Def endan t - App ellant . 




Appeal J:^|om / ^ 
C i rcu,l t^ oij£t^*o 
Car^Qll County 



iifOLPE,— J. 

Robert Davis and V/llllam G. Handel started suit before 
a Justice of the Peace in Carroll County, Illinois, against Earl 
Bickelhaupt, for damages in the sum of ^500.00. Summons was had 
upon Earl Bickelhaupt and the case was called for trial. Bickel- 
haupt was defaulted. The plaintiffs put in their evidence to 
maintain their contention, and judgment was entered in their 
favor for ^500.00 and costs of suit. Earl Bickelhaupt perfected 
an appeal to the Circuit Court of Carroll County, and the case 
was tried before a jury who rendered a verdict in the plaintiffs' 



fit 



.svae ,ou .■-:30 



^ •^-' 'y/ •" . ?-— —- x:^ 



9ll9qqA-e' 









sio'iecf d'Jttre bed-iBJa IsonBU .w ^BXiiJiw ens sxvea Jisooii 

fcBxf ejbw anoiQBUjS .00.005^ lo mua erfcf ni assBXOBf) "^tol ^:iqsJB£iLe^ol5 

-Io:rfoia .I^Jtii rtol hellBO qbw seso 9rf;t fens d-qx/jsrildsfoie '' " "oqx; 

ocf eoneMv© miedi nl ix/q ellld-fllBlr -.'^ / 'ilualob ...ij.v .quBjcf 

ilorfd' n± beieikie bbw inaxar '^ "' V ^r:,oj.jn'^j:ioo ilexfi alainlBta 

heioeVi&q ctqi/axflojfolQ lasa .Jl-ua xy ed-eoo baa OO.OOSi lol iovbI 

eeao ©rfi f)nfl ,Y^^^"C>0 IIoiibO 1o ctiJJoO Jixro'X.tO edi oi laeqqja fia 

'elllinlBlq edi al iolLi6v b b9iai)na'i oiivt x'^^l ^ Qiolsd ballot a«w 



2. 

favor for ^310.00. Judgment was rendered on tiie verdict. It 
Is from this judgment an appeal is prosecuted to this Court. 

The suit having heen started before a Justice of the 
Peace, there are no pleadings, and from the evidence in the 
case it is difficult to understand on what theory the plain- 
tiffs were seekirg to recover. An examination of the record 
discloses that the suit was started for the conversion or 
wrongful use by the defendant of the plaintiffs' truck. The 
Judgment in the Justice Court is for damages for the use of 
the truck. 

In the transcript filed by the Justice of the Peace 
is a statement of the evidence given before him, and it is 
there shovm that proof was offered as to the rental value of 
the truck, and also that the plaintiffs had a party to whom 
they could have rented the truck if they had had it in their 
possession. The evidence before us, as disclosed by the 
abstract, clearly shows that the defendant got possession of 
the truck for the purpose of hauling hay, and was to pay for 
it at the rate of either ^4.00 or ^-5.00 per day. As far as 
the record discloses, he used it for that purpose, and for 
that purpose only, for one day. It also shows that the 
defendant had a mortgage on this truck, but there is no con- 
tention that he took possession of it under his mortgage. 



jl ♦isifjtev ed-i no heiebnei ssw d-xxeiajibi;!. .00.0154 lol iovbI 
• J'x.u. .";»cfwossoic 3 1 lB9qq« ria ;tn3r:^LrJ, alrfcf cmiI al 

t)'!'.t /: j; eoasblye srf:t taofl Bar -teXq orr e^js sieifc^ ^ooj39<I 

tiifaijBlq exfi lo J-nj8£>nelsb ©i . . rtgfloiw 

lo as;/ edi 10I eosBXitaf) 10I al i'nsoO eol^fziJl &ri:f al inssss^ul 

:' ©TO led nevlg soiiajjlvs aricf lo ia&mei&iQ a b1 
Id ©irXsv Ijsixiei ericf o.-t bb Lsiall : di aworfe ©loxicf 

©rii Yc^ ij©EoIo8i£) SB , aw ©10 led eoneblv© ©xfT .nolaeoBaoq 

lo riolBeeEBoq cfog cfxiBbneleb ©ff^ isidi ewoffa yJ^tbsIo ^iOisiiBcfB 

•lol Y*<2 o^ 8BW f)nB »Ysxf gnlXtTBif lo ©eoq^x/q ©xfit lol ■^oini ©rfct 

SB ib1 bA .^Ab "^ceq 00 .?4 "^o 00.^ laricM© lo ©iai ©rict <tB il 

10I ibriB ^ssoqrryq iBi' --^au ed ^aeaoIoalJb btooei ©xlrf 

oxfi i ijrfi awoifa oala ^I ,XBb eao lol »Y-I^no eaoqrnq ctaxfit 

-noo on e1 ©isifcf iud ^iloini airit no ©sBsctiom a bjid ;tnBf)n©l©£) 

.o-;£:x,i':c;;T: alrf loJbm/ ^1 lo xxolsaeaaoq ilooct ed ;tflxf:t nolctnsct 



3. 

Under the evidence, as presented to the jury, Vire think the 
plaintiffs established their case, and were entitled to a 
verdict in their favor. 

However, there is no evidence in the record upon 
which a judgment of the jury could be based in favor of the 
plaintiffs for ^310. 00. As before stated, there is evidence 
that the defendant did use the truck one day, and if the 
plaintiffs are claiming damages for the unlawful use of the 
truck, the judgment cannot be sustained. On the other hand, 
if the plaintiffs are atterapting to get damages for the con- 
version of the tinack, there is absolutely no proof of the 
value of the truck. This Court is reluctant to reverse and 
remand a case for a judgment of this small amount, but there 
being no proof to sustain the amount of the damage, the judg- 
ment rrast be reversed and the case remanded. 

Judgment Reversed and Remanded. 



r O tblQV 

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v.: .-^ii*:: rrrT-v7.:ir --- ^ ' " "• ■ '-^'tfliq 

— ......... ., ..„ ...... ._ — .. -^ lo ©i/IiBy 




^^stract 



G£N. NO. 9961 



GEivD.. KO. 14 




IN THE O O 
ELUTE COURT OF ILLINOIS ,^ 

3EC0ND DISTRICT J^^ 



37 



""^ji'EBRU. RY TSRM/^*'D. 1943 




IN TiiE MATTER OF THE 
ESTATE OF MERTON J. 
EMExtoON, DECEASED, / 

/ 

Appellif^t 

/ 

r^LVINA COOK, X 

^ Appellee* ) 



APPEAL"«J^M / 
CIRCUIT COU^T'-QE' 

Mchenry GoukrY,>' 




On October 5, 1^, r.ppellee filed a dim of $1062.33 In 
the county court of MoRenry County agrlnst the estate of Merton 
J. Enierson, deceased. November 4, 1940, was claim day in the 
eatete. Nothing woe done with the claim ».t thnt time, nd on 
March 24, 1941, the county court entered ^ Judgment ollov/ing the 
cl?im, without --ny notice to the executor or his attorney. On 
June 25, 1941. the executor filed a petition in the county court to 
vrcaLe the Judii;ment. Appellee filed r motion to strike the peti- 
tion, and on o. hearing the petition mp.b stricken. An amended peti- 
tion of the executor was filed on August 4, 1941, r^nd on January 
14, 1942, waa likewise stricken on nppellee*: motion rnd ?- hearing. 
On Kebrufiry 18, 1942, by leave of court, the executor fried a second 
amended petition to vncjjte the Judgment. Appellee ag?dn filed r 



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^•S''«a«'>l» nc .raijguA no fcaXil asw lo^uoexe axij lo noiJ 

.^nl'Ti.i^sd s !« ii iji.)iu .. ;j 'xl8qq« ao a9iolt3n ealwexil snw ,S^ftX »*I 

Xirtooafai & Jbftlil lOJuosxfj «rfr ,^iijoo lo ovBal xci ,S^€I ,81 \iiin<i9'i nO 



amotion to strike and on a hearing the court entered an order 
overruling her motion, from which she appealed to the circuit 
court, renewing there her motion to strike.. The executor there- 
upon filed r. cross motion to strike appellee's motion. On the 
hearing, the circuit court overruled the cro.s motion, and on 
July 31, 1942. entered on ord.r sustaining appellee's motion, 
dismlsslnis the second amended petition, and adjudging the costs 
of the ..peal against the eet.te, to be paid in due oourae of 
dmlnlstratlon. Appellant's motion to set a.lde the order of 
July 31. 1942, was overruled, ond the cause is herofon the estate's 

appeal. 

^Peuee.. oIal» t.at t.e -dor f rlking ^^X'lrTTt^"' 
.on wr.8 res adjudlcata of ^^V'Sr^Led and determined by it, is 
ther Better 'rfhlcft ailgbt J-^^^^^^^^.^i^jtcation to the filing of an 

thout u^erlt. The doctrine n.^. no ^^P^^^^f J^.Jl ^^ been Jjoinedj 
iended pUading In^ ^he ea^;; ^^^Jf^^ ^.^^f^ Son" :de the right, of the 
thervise, the fii'st -1 adlnK ^^-i*^^.^®^" -" ineffective and the 

eaSlr. ^nd any ettcaptcd ^'^^^-^t^^^^f ?.e ^.^^oeateS! The doctrine, 
t tute oermittinc csueu ^^■^^^'^'^'•^^^^^ ? J bv «o^ellee where the Isauea on ^v 
I familiarly apr>llja in ca.e. ^^^^^,^^,^^^^1:^; and a Judgment or > 
he merits vcio llulfcateu in a ^o^";«' ^ ^ Tiie second amended ^ 

decree was entered, ie ^?.*,^,f ?*^f ^ttt ?uo clair.ant -^rocurc-d the f 
etltlon alleged for the J^'^^ J^'"^' t^^tPfoe uad received checks 
llovance of her clal.j. wher; ^he knev ^^^^ ^ l^^^^^^ ^j^ ,^1 service 
Tom the deceased ^^^^^^^ '^^« J^J^;^??AtiSn t^af sue iiad agalnat hl«.. 
.no claims of ev«>ry "attre and aeocripjion ^,,y,^^nt to the date 

"i^ri^ ^r^^e'X^^^ ^ that ..e^.ad cashed such checke 

Jurisdiction. 

'■"^ It is rpp rent th^t the order of the county court overruling 
appe. lee's motion to strike the second amended petition was merely 
interlocutory, leaving appellee where she could answer the petition, 
and did not determine any of ihe rights of the contesting parties on 
the merits. An order or decree s final and appealable only vhere it 
terminates the litigation between tne parties on the merits so that 
when it is affirmed the court beiow nas only to proceed with its 



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' yjR'iuoo nub nt blnq «a ojr ,«r-?s!9 ^d? Jania^ X^sq;** isriJ to 

. I ". o ; - ; 

jit'Oii.- , ?>viJfem»JJ, 

mXX»4j'<ia ■gnXismav : 

fcselai don Jfiloq ; ooR finucriTj e;ti ;fli ^onaao :fa&ll^qq& 

to aolitCi^.^ur 9fiJ no ^^nttf^f^d on 3V?!ri ^^iJOi) ^ioO'iXo sdJ lo i«£ie ftxU 

aniXifii . ,, . _, - .'I 

. .. teveoa J>if ^- vflXtqc}^. aniye^X ^ xio 3 uoc 119 ial 

cic- sfej'rf'i-j goXJee^floo •dJ to Btd^lt .9tii \o -laa. 9alt\i3i9b 3oa Jilb bsk» 

.ifto 9Xc/.«XB0qq« finfi Inn.fl 3i ar3E0«il> 10 i^Mo, <jA ,l|Xa«Mn t^* 

oa aJli9P na:: no e&Iij"' nsa-'^ij ad nciJ^ailXX edfe^Bianlmini 



-S- 



execution, iVialters v. Mercantile Nationnl Bsxik of Chicago, 380 
111, 477, 435; rte Estate of Turner, 275 111. App. 366, 373.) 
Until there was such c determinrtion of the rights of the parties 
in the unty court, the oirouit court was wholly without Jurisdic- 
tion, cjid should have dieinlssed the appeal. (Re Est- te of Turner, 
supra.) Jurisdiction could not be conferred by consent of the 
parties and was not wived oy appellant's appe rence and participa- 
tion in the trial. Jurisdiotion is a question th t may be raised 
!"■% ?ny time, even upon appeal. (Werner v. Illinois Central Rail- 
road Co., 379 111. 559, 666; Audubon v. Hand, 223 id. 367; Town of 
Kingston V. Anderson, 300 id. 577.) Cases cited by appellee, hold- 
ing that one cannot try his case on one theory in the trial court 
and on another theory in a court of review, where the question of 
Jurisdiction was not involved, have no rppllcation here. 

The order of the circuit court entering Judgment for costs 
against the est-te to be paid in due course of drainistrr.ilon was 
.n appealable order. d-layArnd v. Mr,yj«.rrr\d, 96 111. App. 478, 480.) 
Beoaube of the lack of Jurisdiction to enter tny order except one 
^smissinii; the spper.l, it is unnecessary to consider any of the 
other contentions of the parties. The order of the circuit court 
is reversed and tne cause is remanded to that court with directions 
to disraise the appeal from the order of tive county court. 

iveversed ^nd remanded with directions. 



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io pie -asiJleao.'.' .q^sosiu.. :i,»q<j8 ««iJ i}aX«ttXaaj;|} 

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-Qen, 7,0, 9875. 





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?- 



Agenda No, 19, 



APPELM&E COUkT OP ILLINOIS 



SECOND DISTRICT. 
*^Y TERM, A. D. 1943. 



-V- 



VICTOR llORfJEm, \ ) 

■^ Plaintlff-Appellee,\ 



WESTERN AUSTIN COMPANY, 
m: Illinois corporation, 
y^ Defendant-Appellant, 




4ppeal from 
'Circuit Court, 
Vm^^ounty. 



V/OLFE, — J. 

On May 1, 1939, Victor Mortvedt, the plaintiff, 
accompanied by his friend, Sanuel H. Braxton, attended a 
baseball game at the V/hlte So--^ Park, in Chicago. Both parties 
lived in the City of Joliet. The trip from Jollet to the base- 
ball park was made in an automobile ov/ned and driven by Samuel 
E. Braxton, After the game, Mortvedt and Braxton started back 
in the automobile to Jollet, On their way home the car in 
iKhich they were riding, collided with a truck of the Western 
Austin Company, near a tavern and filling station on Route 7 
operated by a man named Ziesemer, At the tiiae, the truck was 



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2. 
being driven by Peter Lorenz, the agent and servant of the 
said Western Austin Company, As a result of the collision, 
Victor Mortvedt was seriously injured. He started suit in 
the Circuit Court of Will Covinty against the V7estern Austin 
Company and Samuel H. Braxton for the damages he sustained 
in the accident. 

The case was tried before a jury, and at the con- 
clusion of the plaintiff's evidence, each defendant entered a 
motion for a directed verdict. The Court sustained the motion 
of the defendant, Samuel H. Brajcton and instructed the jury 
to find him 'not guilty. ' I-ursuant to such instruction, the 
defendant, Braxton, was found 'not guilty' and was dismissed 
from the suit. The Court overruled the motion of the Western 
Austin Company, and it then introduced its evidence. The 
jury found the issues in favor of the plaintiff and assessed 
his damages at $15,000.00. The Vi'estern Austin Company entered 
motions for a. new trial, for judgment notwithstanding the 
verdict, and in arrest of judgment. The plaintiff, Victor 
Mortvedt, also filed a motion for a new trial alleging that 
the Court erred in dismissing Samuel H. Braxton as a party 
defendant to the suit. The Western Austin Company's motions 
were overruled and the plaintiff's motion likewise was overruled. 
Judgment on the verdict for the plaintiff against the 'Western 
Austin Company was entered for ^15, 000,00. It Is from this 



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3. 

judgment that this appeal is prosecuted. 

It is insisted by the appellant that the evidence 
is wholly lacking, in showing that the defendant was guilty 
of any negligence which was the proximate cause of the plain- 
tiff's injury; also that plaintiff failed to show that he was 
in the exercise of ordinary care and caution for his own 
safety, 

Victor Mortvedt testified in his own behalf and re- 
flated the incidents prior to the tine of the accident in 
question. He told about the trip to Chicago to attend the 
baseball game; the time they left Chicago; where they stopped 
on their way home and the road they took; of stopping at a 
tavern operated by a man named Schrage for a few minutes; that 
they then started on the road to Joliet; that it was dusk when 
they left Schrage' s place; that when ttiey left Schrage 's it 
was 6:10 p.ra; that Immediately after they left this place, Mr. 
Braxton turned on the lights of his automobile; that he rode 
as Braxton's guest in the automobile and had no control over 
it; that they were travelling at the rate of 50 to 55 miles 
per hour; that Braxton was a careful driver, and he felt 
perfectly secure while riding with Braxton without any sugges- 
tions as to how Braxton was to handle his car; that as they 
were driving towards the scene of the accident, he and Mr. 
Braxton were visiting; that the collision occurred, and he was 
rendered unconscious, and did not remember anything from that 
time until he became conscious in the hospital after the 
accident. He described his injuries, treatment and time spent 
in the hospital. He further testified that after he had 



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v. •.. . J'toX Tfexi^ ifj^^jB YJe-tsMie-nm;-.' . .,.3 2£w 

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a-^i-t J.0 so^*;. . /i'j'icf S19W "^^a'cJ tf^atdt- ^^^1 

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4, 
been discharged frcan the hospital, he raeasiired the distance 
from Sclarage's place, to Ziesemer's tavern and it is six 
and three tenths miles; that from the crest of the hill east, 
to the drive leading into Ziesemer's tavern is 1,585 feetj 
that the distance from the east driveway into Ziesemer's 
tavern to the west drive where it goes out is 210 feet. 

The plaintiff called Saimiel H. Braxton cs an adverse 
witness. His testimony is practically the came as Mortvedt, 
as to where they had been prior to the accident. He stated 
that as they left Schrage's place, he turned on the light sj 
that he was familiar with the road and had travelled it many 
times, and knew the location of Ziesemer's tavernj that ho 
would estimate the speed of his car, on approaching the tavern, 
at about 50 miles per hour; that previous to that time ho had 
been travelling between 50 and 55 miles per hour; that as he 
approached the tavern, he noticed the truck come onto the 
highway; that he blew his horn and the truck ivas pointed 
towards the southwest; that when he first saw the truck, it 
was his impression that it was not in motion; that the truck 
Immediately came onto the highway at the v/est side of the 
driveway at the filling station at a rate of about 10 miles 
per hour; that he, Braxton, applied his brakes as hard as he 
could, and continued to apply them; that he swung over to the 
south lane of the traffic to miss striking the truck, but he 
thought he saw a light of another car approachir^ from the 



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(>'-' s- ;iJUOif ns^ ft 9 II; wiocf salXXsvflic? afietj" 

ex' h:i ^.iOirrJ ©xli giitiliitfa a«lm o;:^ oills^d' ©rii lo ©xiaX xi;t ioa 



5, 

west, and he pulled back to the right, then to the left and 
again saw the lights, and he attempted to dodge the trvick, 
but he hit the left rear corner of the same, and he was 
knocked unconscious; that at the time of the impact, he 
thought his car v/as about astraddle of the center line of 
the public highway; that as he approached the track, the 
driver in the cab could have seen him from the cab window; 
that he had his car recently overhauled, and the brakes and 
everything were in good working order; that there v,-ere no 
burning lights on the truck when he first saw it, or Iramediately 
prior to the collision. 

On cross-examination he testified that at the time of 
tiae collision, the rate of speed of his car was about 15 miles 
per hour; that he first saw the truck at a distance of about 
300 feet; that he could not see plainly for it v;as dusk, but 
he knew that the truck was at the side of the road, and if 
there was any reflection of the ll^ts on the back of the 
truck, they were not visible to him; that after the truck 
came onto the road, it slowed down; that v/!ien he first saw 
the lights coming from the west, was Just before the collision, 
and that was when he first realized that the truck was coming 
onto tlie highway. 

Several doctors were called to describe the plain- 
tiff's injuries. As there is no assignment of error that 
the damages were excessive, it is unnecessary to quote any 
of the medical testimony. 






1.1 Jasii 



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'■-■■■■'? vef. 



6. 

Dr. Leonard F, Rotlee v;as called to the scene of the 
accident. He was not present in Coiirt, and his deposition was 
read in evidence. In answer to the question whether he made 
any particular note of where the car of the defendant, Braxton, 
was located, he answered that he drove his car right off the 
edge of the highway into the Ziesemer yard, and got out of 
his car and v/alked almost directly across the hard road to 
the car where Llr. Ilortvedt was; and that it could not ha.ve 
been more than 15 or 20 feet away. 

Wm, Raymond Clark testified that he, at the time of 
the accident, was chief of the fire department of the City 
of Lockport, am V7as called to the scene of the accident; 
that he was familiar with the entrance to and the driveway 
out of Ziesemer's tavern; that the driveway from the tavern 
is part of the driveway coming out of the Ziesemer home; that 
Mr, Mortvedt*s car v/as 15 or 20 feet west of the driveway 
ininning south from the house. The plaintiff then rested his 
case, and the Court passed upon the motions heretofore 
ment loned, 

IIo one except the occupants of the car and Pred Pehling 
saw the accident occur. 

The defense called Peter Lorens, who was driving the 
truck. He testified tiiat he had heen in ihe habit of driving 
the truck from Aurora, Illinois, to the defendant's plant 
at Harvey, Illinois; that he was acquainted with this road; 



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7. 
tbat he stopped at zlesemer's tavern about 7:30 p.m. on the 
day of the accident; that he vas driving the Company's truck, 
Yrhlch weighed 7,500 poxmds when tualoaded; that he had on a 
load of castings and windshields, which weigjied two and one- 
half tons* til at the track was 23 feet 6 Ir.c'^os long* that he 
stopped at the gasoline pump and ordered 5 gallons of gas, 
put in the truck J tiiat he went into trie tavern to get some- 
thing to eat; that he ate a bowl of soup; that he was at the 
place about or^-half hour; that he went out to his truck and 
turned on hJ.s lights; that he walked around back of the truck 
to see if the truck's red lights were on, and then to see 
that the front lights were on; tiat the truck was equipped 
with reflectors which showed red vtien headlights are cast 
upon them; that he got into tlie cab and started tlxe motor 
and pxilled away from the pump; that he was on the south side 
of the pximps and he pulled out toward the pavement and stopped; 
that the truck then was facing southwest; ttiat he looked in 
both directions, but saw no car coming; and he saw to the top 
of the hill east on the hard road, and that there v^as no car 
coming from the east or west; that he pulled onto the highway 
to the north side of the slab; that there was a gravel road, 
which crossed route 7, about 425 feet v/est of Zlesemer's 
drivev/ay, and it v;as about half v;ay between the tavern and 
this cross road, vfhen the rear of his truck was struck by 
Braxton's car; that at this time his truck was travelling 



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oifii ©jctt tfixtt jaiKxt llaff 

-or idt X^Qini 9dS nl itrq 

3l©i/^;t aitf lo ifoa<f i:w0O«x« a©al»w erf d'Jlxl:^ jait^ll aiu^' no Jbanrtirit 
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locJoi ijso «SJ eg »«J isii^ I fflsif 3- noqw 

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■^;flwrf8lJEf orf* OJtcco 5»XXjaQ •jii cfeao exfu raoil ^ilmoo 

•^ef alOiJ^ia «iiw, 3«»JJ*i# sitf 1t^ *^ orii aotiyr ,.':>60'; aeo*io aJtri* 



s, 

about 10 to 12 miles per >iour; that cifter the collision, 
Tifcich injured his truck, he cotild not stop the track at once, 
but he drove down within about 100 feet of the cross road* that 
he did not see the Braxton car until after the accident* that 
he went "back to the place where the rraxton car v;as at the 
side of tb9 roadj that there were no other cars coming either 
from the east or the west. On cross-examination this isritness 
was asked v/hether or not he had made a statement in the States 
Attorney's Office that the accident occurred about 8:30 p.m. 
He stated that he did not remember. He also stated that he 
did not remember making other statements relative to what he 
saw of the Braxton car prior to the accident. 

Robert ziesemer testified that tiio tavern o?mer and 
station owners wore his grandparents; that he was home from 
the amy on a furlough on tliis night of the accideat; that 
he did not hear the truck leave ttie station, but saw it before 
it sot onto the herd road; that he was lookinj3 out the front 
window and saw the red lights burning on the rear of the truck; 
that then he heard the crash and ran out and saw Braxton's 
Chrysler car jibout half way between the gravel road, and the 
driveway and about 40 feet west of the driveway; that he 
examined the highway and saw some prints of rubber moj^ks on 
it which led up to the rear end of the Chrysler car; that 
these marks were frcci 30 to 35 feet long and started across 
from where the Chrysler car was standing; that there was some 
broken glass from the windshields on the north side of the 
crossing on the hard road. 



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.bson JbiArf 9di ao ^alABiyio 



9. 

George Krohn testified that lie was at Siesemer'a 
tavern at the tiiae of the accident playing cards with fcsar 
other gentlemen and that his attention was called to the 
accident by Fred Pehlingj and that tiiey went out of the door 
to see the wreck; tliat xtx his judgment, the Braxton car was 
half way hetwoen the tavern and the cr.".: s roads; that at the 
tiiie of the accident, it v/as dusk, hut not dark; that v/hile 
he was at the scene of the accident a car came from the west 
and hit the Chrysler car and ran about 50 or 60 feot east and 
stopped. He estimated the speed of liais car to be 55 miles 
per hour, 

Mrs, Marjorie Bentley testified that she was riding 
with her husband on route 7, driving west; tliat about two miles 
east of the Ziesemer' s place, the plaintiff and Braxton passed 
then, and in her opinion, they were going about 70 miles per 
hour. 

Franklin Bentley' s testimony was practically the 
same as llrs, Eentley's relative to what oc chirred prior to 
the time of the accident. He also testified to seeing sltid 
marks on the pavement near the scene of the accident. There 
was an attempt made by the defendant to shovj by this witness 
that skid marks appeared on a photograph Exhibit 8, The 
Court refused to allow the witness to testify in regard to 
this matter. On cross-examination the witness stated that he 
had no knowledge wloatsoever, of the speed of the Chrysler car 
after it passed over the hill; that in his opinion, the sun 



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10. 
liad hardly set at the time of the accidentj that at tte scene 
of the accident lie looked at the sunset, and looked up and saw 
headli^^ts coning fra:;i the west. He judged the speed of this 
car to be 50 miles per Viour, He heard the driver of the- car 
apply ''^is "brakes and sa\7 hin hit the Chrysler car. 

Charles P. Ziesemer testified that he was operating 
the filling station, lunch roon and tavern.! on route 7j that 
he was in the tavern on May 1, 1939; that there was a "bunch 
in the tavern playing cards at that tiias, and they all jumped 
up and 2?an out and said, "There was an accident;" that he 
looked out of his place of "business, but could not sec it; 
tliat he could see 150 feet west of the door of his tavern; 
that he did not hear the crash. Later ho v;alked down to the 
place, and sav; broken glass lyins Q^" ^lio paveraoit, and he 
took a wheelbarrow and hauled it off. 

Fred Preh^n testified that he lived in Joliet, Illinois, 
and was Secretary of tlx Lion's Club of that City; that he re- 
called the accident in which Hr. Braxton and !,ir, Llortvedt 
figured; that on that evening the Lion^s Club was entertaining 
the Elgin Lion's Club said that Mr. Braxton had purchased tickets 
for this function and had indicated his intention to attend it. 

Robert Swanson testified tliat he was with a party 
that was playing cards in Ziesemer's tavern; that he heard 
about the accident and v;ent dov/n the road and saw the car and 
truck; that the car was nosed into the ditch on the south side 



an. 






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11. 

or the road; th£:t there were two men in the car and v;e tried 
to get til em o\it, tut tte door was stuck fast and we could not 
open it; that the party on the driver's seat opened tb3 door 
aaxi we pulled hira out. In his opinion the accident occurred 
about eight o'clock. He did not Imow whether that vras standard 
or daylight saving time, but it was dusk, fairly dark. It was 
not dayllgiit. 

Fred Pebling testified that he lived in Lockport; 
that he was in Zies€sner« s tavern May 1, 1939, with the party 
that was playing;; cards; that he was watching the gano, but 
was not playing; that he reraeniberod the accident which happoned 
tliat eveniix;. He went outside the tavern, a place east of the 
tavern, and that he saw the truck parked near the station puups; 
that the driver vras in the station and followed him out; that 
he saw the truck in motion, as he was east of the station 
building I that the truck started southwest towards highway 
number 7; that the lights on the rear of the truck were lit; 
tLiat the truck kept in contlnuais motion after it started; 
that at that ti^ne he was walking west towards the filling 
station, and after the track got en to the luird road, it was 
travelling at a rate of 15 to 20 niles per hour; tliat about 
tliat time his attention was attracted by the hum and roar of 
a motor car coming from the east; that this car came over 
the hill; tliat its headlights were on; that he heard the hum 
of the motor before he saw the lights coming ovor the hill 



aj3w 



k 









12. 

from the east; that he watched the automobile Trom where he 
first saw the lights at the top of the hill, saw it pass the 
filling station, and pass in front of the point where he 
was standing. In his opinion, it was travelling at a rate 
of speed ahout 75 to 80 miles an hour, and that the headlights 
were lit on the automobile. After it had passed where he was 
standing, it crashed into the same truck that he had just seen 
leaving the filling station; that the impact, in his opinion, 
took place between 150 and 200 feet v/est of the driveway and 
east of the gravel cross road; that he ran into the filling 
station and told the people what had happened; that he and the 
other people from the tavern went down to the accident; that 
he saw two men in a car; that the door was Jammed, and he 
could not open the door; then the ambulance and fire depart- 
ment came. On cross-examination he testified that he did not 
know whether the headlights on the ti^ck were lit or not; 
that it was a clear night; it was "just dusk, in between;" 
that he saw the car coming from the crest of the hill; that 
there v;as no car coming east at that time; that he saw the 
truck proceeding southwesterly aad west, and ttie car coming 
over the hill in back of him at the same time, because he 
turned and v/alked sidewise about 15 or 20 feet; that he 
watched the car comir^ over the hill down to the intejrvening 
space to the tavern, and then west; that he expected an 



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13. 

accident to happen from the time he first saw the car coming 
over the hill. That in walking back from the toilet to the 
tavern; that it v/as about 30 feet north of the north line of 
the pavement, and. the tavern is about the same distance north 
of the toilet and is in line east with the tavern. 

Before taking the testimony, the amount of the 
hospital, doctor's, nurse's, ambulance bills etc., were 
stipulated to be the amount plaintiff claimed. The stipu- 
lation does not cover tiie report for X-rays etc. It vms 
further stipulated that the defendant, the Western Austin 
Company's S^dilbits, 1 to 12 (photographs) might be received 
in evidence. The photographs show the damaged car, truck, 
tavern and the roads around the tavern. 

There are many minor points that are in dispute in 
this case, but the principal ones may be s"uramed up as follows: 
First, "What was the speed of the Braxton car at, and prior 
to the time of the collision in question?" Llr. Braxton, an 
eaqjerlenced driver, and Mr. Mortvedt also an experienced 
driver, testified that in their opinion they vjere travelling 
at a rate of speed of between 50 and 55 miles per hour. The 
only evidence that contradicts it in any manner is that of 
Mr. and Mrs. Bentley who stated, that in their opinion that 
about two and one-half miles east of the scene of the accident 
the Braxton car passed them at the rate of speed of about 70 
miles per hour, and Pehling's testimony. The undisputed evidence, 
is that frcxn the east side of the drive that enters the Ziesemer's 
tavern, to the crest of the hill, is at least 1,550 feet, and 



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14. 
that from the west of the driveway to the east of tiie driveway 
is 210 feet; that the accident occurred at the west end of 
that driveway, so it becanie a question of fact for tiae jury 
to decide wtot the speed of the car was Just prior to, and 
at the time of the accident and whether it was being driven 
at an unreasonable rate of speed, and if so, whether that 
was one of the contributing causes of the accident. 

Another question is "Vi/here did the accident occur?" 
The plaintiff's testimony is that it occurred about 15 or 20 
feet west of the west drive into the tavern and filling station. 
Doctor Roblee gave his reasons for remembering tiie location 
where Mr, Braxton's car vias after the accident; that is, that 
he drove into Ziesemer's family drive, which is a part of the 
tavern drive; tliat he was lir, ziesemer' s family physclan; 
that he parked his car there and walked nearly directly south 
15 to 20 feet to the scene of the accident, 

Mr, William Raymond Clark, Chief of the Fire Depart- 
ment, was called as the plaintiff's witness, and stated that 
the Chrysler car, in liis judgment, was 15 to 20 feet west of 
the driveway, that is the driveway leading into the house; 
that the driveway is a part of the tavern driveway, Mr, Braxton 
stated that in his opinion, the motor truck was just leaving 
the tavern driveway vihen the accident occurred. On iiie other 
band, the witnesses for the defendant placed the scene of the 



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15. 
accident from 150 to 250 feet west of the tavern. This was 
also a clear cut issue of fact for the Jury to determine. 

There is also a conflict in the evidence as to ttie 
distance the plaintiff was away from the truck at tiie time 
the truck drove onto the highway. Bearing upon the conduct 
of Braxton just prior to, and at the time of the accident, 
is the question whether or not a car showing headlights was 
approaching from the west towards the scene of the accident, 
Mr. Braxton stated positively that he pulled out to the left 
to pass the truck, and he thought he saw the headlights of 
an approaching car, and would not have time to go around the 
truck and avoid a collision. The driver of the truck said 
he saw no lights of an approaching car. It is conceded that 
a short distance west of where the accident occurred, there 
was a cross road and it might well he that Braxton was as 
correct in his belief that he saw lights approaching the car, 
as Lorenz was in his statement that he saw none. It was very 
easy for an approaching car to turn to the right or left onto 
this gravel road, and in the excitement, for no one would 
notice such car. These were all questions of fact vrhich are 
clear cut issues for the jury's determination. 

As before stated, only the plaintiff, S, H. Braxton 
and Fred Pehling claimed to have actually witnessed the 
collision, I.ir, Pehling' s testimony is worthy of consideration. 
He testified concerning the lights on -the truck, and how the 



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16. 
truck drove away froin the pTiinps onto the highway and down 
the road. It will be noted that he testified that as soon 
as he saw the Braxton car coming over the hill, over a third 
of a mile away, (which, if he is correct in his estimation, 
would be 1,760 feet,) that he walked sidewise, because he 
expected an accident to happen. Surely the jury v;ould be 
justified in coming to the conclusion that there would be 
nothing in the sight of the car 1,760 feet away, which would 
lead this man to believe that there was going to be a collision, 
but rather that there must have been something either in the 
way the truck was beir^ handled, or its position on or near 
the h%hv;ay that would cause this man to expect an accident. 

Practically all the witnesses for iiie defense had 
made statements previously as to how the accident had occurred. 
While their testimony at the trial is in general the same, 
there are some former statements in which there are some 
discrepancies in their version of how it occurred. Tliese 
were questions of fact that was the province of the jury to 
listen to and decide. 

In Trust Co, of Chicago v. Ancateau, 317 111. App. 
186, we said: "The law is, tloat a verdict will not be set 
aside in this court as being against the wei^t of the evidence, 
unless it is against tiie manifest weight of the evidence. 
(Corcoran v. City of Chicago, 373 111. 567.) In suits at 
law, where there is a conflict in the testimony, it is for 
the jury to weigh and determine the evidence admitted by the 



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17. 

court as competent. (Mirlck v. T. J. Porschner Contracting 
Co., 312 111. 343j Phllabaiam v. Lake Erie & Vs. R. Co., 315 
111. 131. ) The above cases make it clear that a reviewing 
court is not to Infringe on the right of trial by jury by 
■weighing and detei^mining if the plaintiff has proved his 
case by a preponderance of the evidence. (Carney v. Sheedy, 
295 111. 78.) We do not overlook the rule that where the 
verdict or decree is clearly and palpably contrary to the 
weight of the evidence, it is the province and duty of a 
reviewing court to reverse, but where the evidence is con- 
flicting, that of each party being sufficient, when con- 
sidered alone, to justify a finding in favor of such party, 
the rule referred to is not to be applied for the reasons 
stated in the cases above cited." 

In the present case the jury heard the witnesses 
testify, and saw how they acted upon the witness stand, and 
are therefore in a better position to weigh the testimony 
than a court of review. Considering the plaintiff's evidence 
alone, it makes a prima facie case, and he was entitled to 
recover. After a review of all the evidence, we cannot say 
that the verdict of the jury is against the manifest weight 
of the evidence. 

It is insisted by the appellant that the Court erred 
in refusing to allow Franklin Bentley to testify that the 
marks shown on the photograph, plaintiff's exhibit No. 8, are 
skid marks. This photograph was introduced in evidence and 



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IG. 
was taken five days after the accident occurred. The jury 
had this photograph before them, and they also heard the 
witnesses say that on the night of the accident they saw 
skid marks on the pavement. The evidence shows that a car 
described as the "Ohio car," came east shortly after the 
accident, at a speed estimated to he 30 to 50 miles an 
hour; that the driver ' slammed' on his brakes and stopped 
his car within a short distance j that he damaged his own car 
as well as hitting the Chrysler car, which was on the side 
of the road. Under such circumstances, vie think the Court 
properly held that it was a question of fact for the jury, 
and not the witness to determine what the marks on the 
photograph represented. 

The defendant complains that the evidence fails to 
show that the plaintiff was in the exercise of ordinary care 
and caution for his own safety at, and prior to the time of 
the accident. As before stated, the evidence is that Mr. 
Braxton was an experienced driver; that the plaintiff v;as 
riding with Mr, Braxton as a guest in his car, and had no 
control over it at any time, liir, Braxton knew the road and 
the plaintiff did not. Both gave their opinion that he v/as 
driving the car at a speed of between 50 to 55 miles per hour. 
The plaintiff stated that he had nothing whatsoever to do 
with Braxton's management of the car, and that he thought 
at the time, the car was being handled in a safe and efficient 
manner. 



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.•rearffln: 



19. 

Even if the cai' had been driven as fast as the 
defendant's testimony seemed to indicate, this could not 
be held as a matter of law as being excessive, or dangerous 
speed. It is well known that many men and women T?7ho were 
considered careful drivers, prior to the gasoline rationing, 
did not consider 75 to 80 miles an hour an excessive rate of 
speed. Due care, like other questions of fact, v/as one for 
the jury to decide. The negligence of Braxton cannot be 
imputed to the plaintiff, Thomas vs. Buchanan 357 111. 270. 
We think the jury properly found that the evidence sustained 
the plaintiff in that he was in the exercise of ordinary care 
for his own safety. 

At the conclusion of the plaintiff's evidence, the 
defendant, Braxton, througji his attorney, entered a notion 
for a directed verdict, which the Court sustained. The 
defendant, the Western Austin Company, claims the Court erred 
in dismissing Braxton from the case, as it prejudiced the jury 
against the Austin Company, They claim the plaintiff had in 
his knowledge facts which he could have produced, and which 
were later produced by the Austin Company to shov/ that Braxton 
was guilty of wilful and wanton misconduct, as charged in the 
plaintiff's complaint, and that Braxton being called as an 
adverse witness, was not done in good faith. Using their own 
language they say: "Mr. Mortvedt and Braxton were engaged 
in a sham battle, a mere exhibition of shadow boxing, with no 
intent eventually to hold Braxton liable." As supporting their 



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20. 
contention, liie defendant relies on the case of Clancy vs. 
Richardson et al., 332 111. App. page 99, The opinion in 
the Clancy case states facts that shows the plaintiff had 
made out a prima facie case of gross negligence against 
the driver of the motor trtick, and it farther shovrs that 
the plaintiff himself dismissed this defendant from the 
suit. The facts in the Clancy case are wholly different 
from those in the present one. This was a motion hy Braxton 
that the case be dismissed as to himself. As far as the 
record shows, the plaintiff in good faith, filed a motion 
for a new trial, to have Mr. Braxton reinstated as a defendant 
in the case. There is a vast distinction between the Clancy 
case and the present one, le agree with the trial judge that 
the plaintiff failed to make out a case against the defendant, 
Braxton, and that the plaintiff was under no obligation what- 
soever to call other witnesses to prove his case. The v/itnesses 
were called by the defendant, but the plaintiff claims that 
they are mistaken in their testimony in one vital point, 
namely, "As to where the accident occurred. " 

The appellant is not in a position to raise tiiis 
question in this Court. The abstract discloses that the 
defendant, the Western Austin Company, filed a motion for a 
new trial; that the motion stated specifically at least 40 
reasons wherein the trial court erred in the trial of the 
case, but nowhere do they maation, or state that the Court erred 
or tiiat the defendant, the Western Austin Conipany, was prejudiced 



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21. 

by the dismissal of the defendant, Braxton, f rom tlie case. 
In the appellant's reply brief they claim that the question 
was raised under points 21 and 22 of the motion. An ezarain- 
ation of the abstract does not sustain this contention. In 
the case of Doellefield vs. Travellers Ins., Co. 303 111. 
App« pa^e 123, this Court stated the law in such cases and 
on page 128 of the opinion, we use this language: "If certain 
points in writing particularly specifying the grounds of the 
motion have been filed, the party filing the motion will be 
deemed to have waived all reasons not specified." 

Plaintiff's Instruction No. 9 is: "The Court in- 
structs the jury that on May 1, 1939, there was in force arjd 
effect certain Statutes of the State of Illinois, which pro- 
vided as follov.'s: When upon any highway in this State during 
the period from sunset to simrise, every motorcycle shall carry 
one lighted lamp and every motor vehicle two lighted lamps 
showing white lights, or lights of a yellow or amber tint, 
visible at least five hundred (500) feet in the direction 
toward which the motorcycle or motor vehicle is proceeding; 
and each motor vehicle, trailer or cemi-trailer shall also 
exhibit at least one lighted lamp v/hich shall be so situated 
as to throw a red light visible for at least five hundred (500) 
feet in the reverse direction. " It is nov; claimed that the 
Court erred in giving this instruction, because the Court 
had previously given the jury instructions number 5, 6, and 
10, mandatory in form. They claim tliat the jurors were 



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22. 
inforraed that the failure to extiibit a ray of light, rrhich 
is visible for 500 feet would constitute proof of appellant's 
guilt, and authorize a verdict of guilty. It will be observed 
that on a reviei^^ of each of these instructions that the Court 
qualified the instruction and stated, "That any negligence, 
if any, by the driver, or the defendant, ixsxst have contributed 
proximately to the cause of the collision, and to the injury 
of the plaintiff." V/ith this in mind, ve think that the 
jury was properly instructed, 

V:e find no reversible error in the case, and the 
Judgment of the Corrrt is hereby affirmed. 

Affirmed. 



bstix^ri 



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C-en, No. 9881. 



Agenda No. /9. 



\ 



''^v 



IN pS, 

Ai'PSLLATE atSlJRT OP ILLINOIS 
Sgd'OND DISTRICT 

.M, A. D. 1943. 



/l 



/ 



''*^, 



EVELYN HOWARD, ij^inistrator of the 
Estate of Earl/I^obert Hov/ard, Deceased, 
/ Plaint iff -Appellee, 



/ 



vs. 



CHARLES IN^ and RAYI,IOKD FIAJIT, 

/ Defendants-Appellants. 




Appe^ai rrc ^ 

Circuit gJoi^ty..,, 
V/inn^^bqfgo Cour^'y*. 



/ 



WOLFE, f- J. 



This appeal is from a judgment for -^7500.00 entered 
in the Circuit Court of Winnebago County December 14, 1942, 
against Charles Ind and Raymond Hart, in favor of Evelyn Howard, 
Administratrix of the Estate of Earl Robert Howard, Deceased. 
This judgment v/as based \ipon the verdict of a jury in said 
Court. The complaint consists of two counts, v;hlch was later 
amended. It charged that on December IS, 1940, Kishwaukee 
Street vras a north and south public hlghv/ay in the City of 
Rockford, Illinois, running in a southerly direction from said 



-.r,^ 



.H has. (Jril ZZi 






2. 

City to Canrp Grant and v/as a paved concrete slab and vjas designated 
as 'preferential highway;' that on said date Earl Robert Howard 
vras riding in a motor vehicle driven by Charles Joseph Howard 
on said highv/ayj that said Charles Joseph Howard was not the 
decedant's servant or a^e-t, and v:as not subject to his direction 
or control; that on said date the defendant, Charles Ind, v/as 
the owner of a certain motor triick used for carrying gravel, 
which was being operated by the defendant, Raymond Hart, v;ho 
was in the employ, and was a servant and agent of the said 
Charles Ind; that the motor vehicle in v.hich Earl Robert Howard 
v/as riding was being driven in a southerly direction on said 
highway, and as it approached a point where a private driveway 
leads from a gravel pit on the V/est side of said highway, the 
truck of the defendant v/as then being driven in an easterly 
direction on said driveway by the defendant, Rajmiond Hart; that 
said track v/as being driven at a high rate of speed as it 
approached the highway on which the plaintiff's intestate v/as 
riding, and without first being brought to a stop, drove directly 
in front of the automobile in v/hich the Howard's were riding, 
and that the truck, and the car in lAhich the plaintiff's in- 
testate was riding collided, and that the plaintiff's intestate 
received injuries from wliich he died. 

It is further charged in the complaint that it was 
the duty of the defendants to so operate, drive, manage and 



iiBST^lZ- 



r>'iJ3wo- 



ac. 



i310fi00 



-zoSota B al ^Ibln' esw 

'■£d:i i^jowxjfelcf £)lBa no 

•"t9s 8*trtabeo©|j 

i {loi^noo 10 












j-itaijnelei) erfi lo jfoxJtt;t 



TfiE iKioer^sS 4;Jnfil)nel0£i ad^ x<=f \JB«©vlii) JblBs no- nol^tooilb 



■' - ia n®vJ:'t& ^aiocf aaw liotni Mas 
uj doidw no ^awxlslif arW i>8d0B0'^qQA 

^.-r ... v_.., .i.,.,.. ^'JQxl^iw ijoja ,3nibJti 
■ --^ -^ - :»aoil nl 

4i/ t»xi uc';-.,w f.ioil aolii/tni .bavisosi 
ana j_ .>^:ij aiujii t^r.-.-o-j t.-- J ni. b^^isrlo TiGiid'itrl al ;fl 
baa sj^anan ,evlib ^ocfaasqo oe oo ectnabrrolsfc ©rii i^. ^.J^. --.iJ" 



■^qa "io 8jj3'r 

ooQiib avonb ^iqod^F: ' '' t' 
,StiAbJL5 fxew a'triJiv- 



3. 

control said motor truck at the junction of said private 
driveway with sale, public highway so as not to injure any 
person rightfully upon said highway including the deceased; 
also that it was then and there the duty of said defendants 
to bring said motor triack to a stop before driving upon said 
highway, and to otherwise yield the right of way to the r.iotor 
vehicle in which the plaintiff's Intestate v/as riding at the 
time of the accident. 

It is further charged in the complaint that at the 
time aforesaid, there was in full force and effect, a provision 
of the LTotor Vehicle Act of the State of Illinois, to v;it: 
"Chapter 95^-, Paragraph 160: The driver of a vehicle about 
to enter or cross a highway from a private road or driveway, 
shall yield the right of way to all vehicles approaching on 
said highway. " Tlien follows a charge, "that because the 
defendants failed to observe this Statute and yield the right 
of way to the vehicle in v/hich the intestate was riding, he 
received his injuries etc. " 

Pursuant to an order of Court, the plaintiff v;as 
permitted to amend his complaint by adding Paragraphs 5 and 
6 to Count 1: "Tlaat Section 102 of Chapter 95a- o£ the Revised 
Statutes of the State of Illinois in effect on December IG, 
1940, provided that it was unlawful foi'* any person to drive or 



tJtitf OCT 



.tBP9'r.olB em*;t 



ri^srtflS. .^^0 Te+rarfO" 



OBonqq.. 



>Tieado oi ball si ad^nabneleii 
■ei:'xjJ'{,njt eirf £>ov-teooi 

inuoO oi 6 
let 'io aeiir,:fa;J8 
jsisivoiq ^O^GI 



4, 
move, or for the owner to cause or lcnov;ingly permit to be 
driven or moved on any highway any vehicle wlilch is in such 
unsafe condition as to endanger any person or property or 
which does not contain those parts or is not at all times 
equipped with such lamps and other equipment in proper con- 
dition and adjustment as required in Article 15 of such chapter 
or which is equipped in any manner in violation of such Article 
15, or for any person to do any act forbidden or fail to per- 
form any act required under said Article 15, 

"It is further provided in Section 103 of said Chapter 
and within said Article 15 that when upon any highway in this 
State during the period from sunset to sunrise every motor vehicle 
shall carry two lighted lamps showing white lights or lights of 
a yellow or amber tint visible at least 500 feet in the direction 
toward which such vehicle is proceeding; and it is further provided 
in Section 112 within said Article 15 that at all times during 
the period from s^inset to sunrise that at least two lighted lamps 
shall be displayed, one on each side at the front on every motor 
vehicle except when such vehicle is parked, subject to regulations 
governing lights on parked vehicles." 

It is then charged tliat the defendant Ilart at the time 
of the accident in question was operating the motor vehicle 
Involved in said accident without complying with Sections 102, 
103 and 112 of Article 15 of Chapter 95?;- of Revised Statutes 
of the State of Illinois in that he did not have two lighted 



^xoj..; ... 



....,_. ;>.:J lol 10 ,ovoffi 

..... ,;nfl no bevotn no nevl'xb 

abn© o;t sij nolJli>noo alsBxiir 

-•;/,-,'■+ .-rfjj^noo Uon esof) rfoirft^ 

vjI HOiiia rfjflw fcoqqliip© 

- .« . ^- * .- rr)0 ' a_£ jrfolxftr 10 
. ..o^^^vi -^Afl •sol to jSI 



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>> -r.. iffav rio0B rlolriw biavoi 

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-'■■ 'f'/a raot'l Bolisq erfct 

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• rf'* iqeoxa eloli-fev 

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rtoWe-eirp nl ineblooe ^- - .3 



B^iuisi:fZ f)eaiv8H lo -feSO lecfqarfO lo ?.I elolctiA Ic 211 JJrcfl COI 
be:i-rfs;il ow-:t svarf ion bib &d ctarfi ni slonllll lo o.-*a»t3 erf^t lo 



5. 
lamps, one on each side at tlie front of the motor vehicle he 
was so operating upon the highway in question. The complaint 
also alleges that the plaintiff's intestate was at all tiaios 
in the exercise of due care and caution for his ov/n safety. 

The defendants did not challenge the sufficiency of 
this amended complaint, but filed their ansv/er admitting many 
of the facts pleaded, but specifically denied any negligence 
on the part of the defendants, and denied the plaintiff's 
intestate was in the exercise of ordinary care and caution 
for his own safety at the tine of the accident that caused 
the death of plaintiff's intestate. 

The case v;as submitted to a jury vJi ich found the 
issues in the plaintiff's favor. The defendants entered a 
motion for a new trial, and specified many reasons v/hy the 
same siiould be granted, but the Court overruled the motion and 
entered judgment on the verdict for '^7500.00. It is from this 
judgment that this appeal is prosecuted. 

There are only two questions involved in this suit. 
First, the admissibility of certain evidence, and the other 
is the sufficiency of the evidence to sustain a verdict, 

Evelyn Howard, the plaintiff in said case, testified 
that she was the widow and heir at lav/ of Earl Robert Howard, 
deceased; that he had been regularly employed, and that his 
earnings were from ^^.42. 00 to ^45, 00 a week; that he was in 



ox-f &lol£i»v •xocfcwa &£ii to inonl ©4^ *i» «Jbia rioss no aim ,ac[mal 

+rr^??Ir««oo ?*riT atoliBQup al xawsi^Jtsi edt.stotiu .^aXisniiqo oa ajeir 

i SAW dia^QQial B^,111^al&lq ed:i d-fl.»-4t ees^-^-t-a oaLe 

,Yt©'i-'*8 ft*© 8 Iff. lol fio^^WB© ba» &%ao q- aioiorte ©xij al 

'\c d:} d2/;«»IX9ilo. d'cw Mb B&cmbri&lQb &dl 

sls^ibB lews. J l)«X^l ..iljalQinoo b^ijneraa a-td^t 

9,on«7:!l:J^en Yf^s ft* trials TjXIjsollloeqa d-jjd ^^eftijelq aioal exit lo 

iaeJtnef) i)rxs ^a;}rmba&1i o d-ijeq erf* co 

besimo ;Sf»!i^^£i&blooa &iii to eit. isxjaa xiwo alrf lol 

©£f ^ fjxurol jrfoidrv ct JE?©tcfI^ .iv aeao arfT 

•5 b^ifid^ae aiaMbnet^b eilT ♦lovAt ft »'llld-fxJ:sIc[ erfct x-:! aei/aal 

aad- ijjriw anoaadi' ■^mmi AellJtpecja beta- jlal-s.; lol £io±;toia 

alxit HK«1 al cfl «00,005V^ nol .d'plJb'iev »d^ no jneiJigiJjjf, b9iQia& 

.?jA.:Vfro08Oiq ai Iaeqq« elff.-t d'arf^t dTiem^bxTt 
.ji-js . .1 £>&vIo. -.vta«0p.QW^ Ti^RQ *"' 

.ioilnev b nlactawa Qf sqj^colu .o xonelollijJB- exi^ ai: 

Deillctaej ^asjao Maa nl I'iid-islAlq erf* -. xr^Iavi: 

^b-^revJoH d'loffoH Iiaa iQ wal ia 'xlexf itfia wofclw ©xl4 ajBW ©n'a ;fB£(Jt 

,i;e"^oXgme viialifg**! n»4»cffjar( ©d iisd;t jl)6ej>ooob 

nl aijw erf i'flrf.l js^'eew jj OC.eK o;t 00,S*v ootl a-sew a3nXnijae 



6. 
good health and worked steadily and supported her; tliat he 
died December 13, 1940, 

May Iladd testified that she lived at 1603 Ivlshwaukee 
Street in the City of Rockford, Illinois; that her horae is in 
an apartment buildin^-;; at the southwest corner of the intersec- 
tion of Klshwaukee Street, and IGth Avenue; that she live?, on 
the second floor of said huilding in the southeast part of the 
same; that Earl Robert HoT/ard was her brother, also Charles 
Joseph Howard, the driver of the car in which the decedant 
was riding on the ni£;ht of the accident; that on the evening 
of December IG, 1940, both brothers were at her home; that they 
came about five o'clock; that they had dinner at her home 
about 5:30 and tlza.t she heard Charles Ilov/ard and Earl Howard 
say they were goin-j; to the Town of Eyron to get a new car that 
Charles Howard had purchased; that after dinner she saw her 
brothers, Charles and Earl go out to their automobile, and 
Charles got in the driver's seat and Earl on his right; that 
lights on the car were turned on and the car was started and 
they drove away; that the road where the accident happened 
would be on the way to the Tovm of Eyron, The defendants 
objected to part of this testimony on the groimd that it was 
too remote; triat from where the witness lived to the scene of 
the accident v; as approximately 2.4 miles, and that the testimony 
was not a part of the res gestae. The Court overruled the 



•O^ex ,ax isdirrooecr belt 
&Q-]^ij.^miBlTi COS! ijB S«lriX«48 SbiU bsdllcfaei bJbAH yA'- 

s£fo ^Bif;f t«>iin©vA rid' SI bta ,c^^6■2::^^ 8®:^arsrriat3 ^o goI5 

3Siv ,.e. 5^«rf.-t©'irf rsserf saw .bi-.«?if^oH t'rado-S loaa^.-aifa jsaea 

iffB£>@oeij - ..fyrBwoii xfqsaoL 

• OEIOrf ie. .;16jri,tO«-v. . ,-I 18Cfia»0QG 1o 

isi/ct 'TflS ai»ff j» shsji O'^J' iOe^ltS lo nwC. . cog s«xow -^11:^ x«e 

'lOff WB8 erie lexirflb 'let^s tar':»^ j^s^.'^rinrrr-c .ban, biflwbH 3«)IisrfO 

tea ^eXJtcfOKOctwA 'SiiOi asX'XBrfO ^siaii^fo'scf 

ctflrfi jirlsli elrf no lOisS 6fiJ8 d'sea e*i©vii£) ©iftf xt± d-^g eeX'saxfO 

brta b&iftBis aaw iag «!# fcgrtiiB «Ki >«n»s/;J akew tBC ©i-fcf no sirisXX 

Jberisqijjftri cTnoJbldoa ari^ ^isriw Jbad ed^ :fHxiJ j';tJ^vfl evo^5 ■y;«rii 

Bir.pbRfli'iefj ©rlT .ao*T^a 'lo rtwoT <idi oi xa^ *rf^ «o «<^ bXiAiw 

Ife ««*6»^W* :<>i: £»«iviX aatlid-lw orW oierlv? i'ioil ^*«fi telotaei oo:f 

YHomMad^ axi;* *<jJct i)aa ^e^Xim f^.S \-X©c^j9iaiJco*xqQfl eaw dnobXoae eAt 

orl^ iJsXinievo tiJJoO exlT .Oisu'esg aei exli lo it^q^ a ion eaw 



7. 
objection and allowed the testimony to stand. At the con- 
clusion of i'r^-. Kadd's testimony, I'r, Welsh, the defendants- 
appellants' attorney, made a motion to strike out all of her 
testimony and the questions and answers in relation to v/hat 
occurred in the flat that evening, "because it was not a part 
of the res c^stae, and too remote and no continuity sliown. " 
This motion was also denied. 

Mr, Howard Sassatnann testified that his business was 
hauling niilk from farras in the conniunity, where the accident 
happened, to the B^'ron Cheese Factory; that on December 16, 
1940, he was driving on Kishwaukee road between a quarter of 
six o'clock 8jnd six p.ra; that he saw tlmt an accident had 
occurred between an autonobile and a ti^ack; that he saw the 
truck across the road, as he approached the place v/here the 
accident occurred. He identified Plaintiff's Exl-iibits I;o. 1 
and 3 and Defendant's E.xiaibits ITo. 2, 3, 4, 5 and 7. He 
further testified that v;hen he arrived at trio scene of the 
accident, the truck was standing right in front of the road 
that leads dovm to the gravel pit off the Kishwaukee road; 
tliat Plaintiff's Sxiiibit No. 5, shows the entrance v/ay that 
leads do'ivn to the gravel pit, also the paved road at the 
entrance of the road to the gravel pit; that there are pillars 
on either side of the private drive leading datjn to the gravel 



.V 

oaf B eiijum ,ij9xrjod^d"fl ' 8;tn«II©qqa 

J'uaq - 

saw esc . 

•taeijXoojs axil sesaffw ^ : j Imanaio •: ' eynal nroil illis sailirsii 

..'v-- '.e ' toa'? ©■., ©£i;t pd' ftJb*i26qqfl£f 

lo •»i'L»icp JB aeewd^^ , doiltrawria-ts no a>TiJlyiib si -Gi 

aiQifw aoal - soa oxfcf b,oq^o& ^oirti 

i'lllialaX^ |>9llId'rxofxt e ijqqo :ia9blooM 

aiij lo 0^90 3 Oiit d-3 I>0vJt'W« axf cdxiw .iad* Jb«JtlWae;l •jejiii-iJ.f'l 

lijuoi ea>ii/aicieJt2 ©lii llo ilci leva^^ 9d^ oi futob ai)asX iadi 
i&ii: ixsid-na ©xfJ- «w4a ilcflificE a'Tll;tniBl1 iaii^ 

Xovsis exl^ o^ awob BbaBl 
aialllq oia Q'j:eilJ aig Qdi o:i bM<yt 9d^ lo 90j:iaT:;tna 

l6vaig nwofi gniiiasX ®vl'x& actav.' -o ©xxta oaxlil© no 



8. 

pit which were about three feet square and were seven or 
eight feet high; that the truck was standing facing southeast 
in front of the road, and that it covered jjractically the whole 
of the paved portion of the highway; that he saw the Howard 
brothers in the ?ord Coiipe, v/hich was standing about eight feet 
south and east of the truck; that Charles Howard was behind 
the steering wheel of the Pord Coupe, and Earl v/as at Charles 
Howard's right; that there were no lights burning on the front 
end of the truck tliat night, 

Avery Gage testified that on the evening of the accident 
in question, he was employed at Camp Grant and was driving a car 
for some architects who were doing some construction v;ork on a 
building at Camp Grant; that between 5:45 o'clock and 6:00 p.m. 
on the Klshwaukee Highway he cane to the scene of the accident; 
that his employer, Mr. Aske, v.'ho was riding with him, told him 
to stop; that they saw a truck standing in the inlddle of the 
road nearly crosswise of the sane. They sav/ there iiad been 
an accident, and that some men were hurt; that he drove back to 
Camp Grant and called for a doctor and an ambulance, and then 
immediately drove back to the scene of the accident; that it 
was quite dark and that there v.'ere no lights burning on the 
front of the truck; that a Pord Coupe was about to 10 feet 
on the south and a little east of the truck; that both of the 
Howards were in the Pord Coupe when they arrived at the scene 
of the accident, V/hen they arrived there the second tinie, there 



.8 



ovse 8' 



9J.V 



ea. 



i r^ ^J 



" -■• ■ - -■■■- '■■■ - ;jj3 Qrf^f 



.jji;U^ -i:-i-J 



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g .- A t- i . :. 



■ot^y 






>- aioectiiioifl ©iTtce lol 

.ijylusvii&llL erii no 

> s.ae Y^d^' :?jru.- i'-.-v. a oct 

"-'-' ' '- -^neblooa aa 

siorii tO"jld- inooea edi 9i&dd bevi-riij y®^=^ nerfW .ineJbloos eri;t lo 



n&dS biiid .fy'JXijJi.. 



cteeO 



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\j o;jir; »;_ 



9. 

•were no lights on the front part Ox the truck. 

The deposition of Mr, Jerome Asko was read in evidence. 
His testimony is to the effect that on December IG, 1940, he vms 
riding with his driver, Mr. Avery Gage, and they csme upon the 
scene of the accident in question. As they were driving in a 
northerly direction, his attention was first attracted by the 
sudden slov;ing down of his own car, and he looked forward and 
saw the truck standing nearly diagonally across the paved part 
of the highway; that it was just about astraddle of the center 
line of the hi-^iway, and it came very nearly occupying the 
entire width of the pavement; that the Ford Coupe was somewhat 
south and east of the front of the truck; that the truck in 
its ang'alar position, v/as very nearly pointing to the rear end 
of the Ford passenger car, v/hich was about 4 feet from the 
edge of the pavement. 

Harold Bentley was called as a witness. He said he 
was tho Coimiissloner of Highways of Rockford Township, ajnd had 
been such coinmissioner for the past 10 years and nine months; 
that he vms acquainted with the Kishwaukee road where it was 
intersected by the drive dcxin to a gravel pit in V/innebago 
Co\mty, Illinois. lie said that Plaintiff's Exhibit No. 3 vms 
a picture of the intersection; that the Kishwaukee road is a 
public thorouglifare and a paved highway, and that the road down 
to the gravel pit is not a public road, but is on a private 
property. 



.:!oin^ edit lo itaq iaoil 9dd no z-^d^ll on siaw 

^T: .rro .f.cfr;- 'rrsblooa edd' lo saooa 

b.*^r, MjB'srrb'^ nor/r^cl ?ri- fin- ,t:35 rrjro slri lo riwob ^nlwola rrefxbx/a 

.-rt^irf 3rf:f lo ecfll 
:blw o'xJtine 
iaae £ina xi^x/oa 
..loii'leoq lAltt^OB B:il 
ts^nattaaq Jbio*"! etfi lo 
,d[n©iis©Vflq erfcf lo e^ha 
■■■^■lin&Q bloiall 

ndxtoiaaifxcioO odi esv 



£>rr9 "use ii gixt jnloq ■<jXia*n ;c'^i: 

c'lf Hoil isiel t- :j-iroda aj»Tsr rloin 






rfsn-.tDT ^•xo'^aiooE lO sybw. _ 

- aitsex OX i^sq adct lol isnolealntcioo doira n©«d 
ax5w Ji: e*t8dw 5/^'"!'-' oo2lc/£^wda.^.^ srfrf rfii-T ^;tnl3£/po^ SBTiy ed iad^ 

-yoJb Jbfio .3/^:^ 5*::^. ':jo-^r";'7 3 brrs o'ialx^ixo'iodrf ollcft'q 

.■^inaqoiq 



10. 

Harry Edward Walters testified that he lived at Oregon, 
Illinois J that he had Imown Earl Hov/ard for* about 22 years; that 
about 5 years prior to Earl's death, he had seen him at least 
every two weeks; that he had ridden in an automobile driven by 
Earl Howard and Earl had ridden in an automobile driven by him, 
(the witness;) timt he kxiev; Sari's habits as to care and caution 
in the ordinary affairs of life, and tlmt he was very cautious 
and prudent in driving an autoiaobile, which he always operated 
in a very careful manner. Wilbur Waach's testi^nony is to the 
same effect as Harry Edward Walters. 

After this, the plaintiff's exhibits were offered 
and admitted in evidence, and the plaintiff rested Ms case. 
The defendants offered no evidence, and the case went to the 
Jury on the plaintiff's evidence and the e^diibits. 

The appellants argue strenuously that the Court erred 
in admitting the testimony of Llay Iladd relative to vtrhat took 
place at her home prior to the accident, and as to her seeing 
her brothers drive away in the automobile with the lights burning 
a few minutes before the time of the accident. It is apparent 
from the record that there was no eye-witness to this accident. 
In the case of Casey vs. Cliicago Rys. Co., 269 111, 33G at 
Page 339, the Coart in discussing the rule relative to the proof 
necessary to be produced in a death case where there was no 
eye-witness to the accident, and at Page 390 we find the following: 



,01 
.rroseiO i& bevll erf iad;i Sdlll^aoi aieiXaW tnawbS. yi^-s-'I 

uii jata©^ SS ii/otfe fol fo«iJOTr»H ItsP. rtwoini bad ^fi. isdi ;alonJtIII 

,'•,:-■■- .'13 .bi.evroK I«i«S 

a. .-^i^naBtn liAe^x: , ..I 

©rfi ci inew ear ^aa ^©n©^l ainsfainalei) erfT 

.aJlcflrfc:© &iiit ^am ♦&fl»J)iv;- /nljalq ©riit no X'^l 

inaoac. ^.taeLItv., ©':!:o'io--f s&iiixiJUjr' wol « 

,:tnei)loofl aid:} oj ae9f#iw~#'<^e ofx «x . xooei eiii moil 

■:?r 06.. . ■■■" og^oiirfO .uv '^eeaO lo ©bbo &iiJ xxl 

loo'ig erif oi ©vic^AE©^ ©iu J-geuoailj ai ^^ijjdO erf^ 166C ©sa^ 

oxi UBW eiocU eisxiw ec , bdot/boiq ed oJ -^aaaeoaci 

;3niwoII»l ad^ 5nil •» OSS ega^ d^a fina ^icwI>lo9a Bd:i oi ason^Iw-©"^ 



11. 

"It was necessary for defendant in error to allege and prove 
that his decedent was in the exercise of due care and caution 
for his ov/n safety at tho time of the accident. In cases 
where there are no eye-v/itnesses to the occurrence this allegation 
cannot be proven by direct testimony, but it still devolves upon 
the parties seeking recovery to establish the exercise of ordinary 
care on the part of the deceased by the highest proof of which 
the case is capable. ( Collison v. Illinois Central Railroad 
Co. 239 111. 532; Stollery v, Cicero and Proviso Street Railway 
Co. 243 id. 290; Newell v. Cleveland, Cincinnati, Chicago and 
St. Louis Railway Co. 261 id. 505. ) The highest proof of which 
the case is capable laay consist of other circunstances than the 
habits of the deceased which would tend to raise the presumption 
that the deceased was in the exercise of due care and caution 
at the time for his own safety, V/here it is possible, such 
circumstances must be shov.'n. The absence of such circiimstances 
does not preclude a plaintiff, however, and if the case is not 
susceptible of any higher proof, then 1iie presixmption that the 
deceased was in the exercise of ordinary care and caution for 
his own safety at the tirae of the accident is sufficiently 
raised by proof tliat he was habitually careful, prudent and 
cautious in his conduct. If the deceased was habitually prudent, 
careful and cautious it tended to raise the presumption that he 



no ^' 



X=XMliXJj\ 



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oiLi mlldii^&Q Qj x'i&voo&--x. '^ixxjiees soliiaq edi 



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12. 

was In the exercise of du6 care and catition at the time he 
received the injixry Yrhich resulted in his death. (Chicago, 
Rock Island and Pacific Railway Co. vs. Clark, 103 111. 113 j 
Toledo, St. Louis and Kansas City Railroad Co. v. Bailey, 145 
id, 159.) As the proof made relative to the habits of the 
deceased tended to raise this presxiaption it was sufficient to 
go to the jury." Thia case •vvas cited vjith approval in Moore 
vs. D D & C Railroad Company, 205 111., Page ^o; Young vs. 
Patrick 323 Illinois Pago 200. 

We think this evidence was properly admitted both 
for tiie purpose of shov/ing due care and caution on the part of 
the plaintiff's intestate, and tLiat 3arl pLObert Howard v; as not 
driving the car and v/as not an agent or servant of his brother, 
Charles Howard, at the tine the accident occurrod. 

The evidence is uncontradicted that the plaiiatlff's 
intestate was a young r-ian of very careful habits and that the 
presunption is that ho vras in the exercise of due care and 
caution for his wn safety, just prior to, and at the time of 
the collision that caused his death. It has been stated that 
presumptions are inferences which coraraon sense draws frora Uae 
known course of events, or from tiie circujistanccs usually 
occurrir^ in such cases. The sister's testimony was to the 
effect that she saw the lights on the car were turned on at 
the time the brothers left her home in Kockford, which is 
practically two miles fron the scene of the accident. If 



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11 .ctnebJtoofl edct lo en©oa oili caoil zella: owcf ■z-Ll&Q^^oaiq 



13. 
the ll-^lits were tailed on when the car left Rockford, and the 
evidence ^lows that the Howard "brothers were both men of 
careful habits, surely the Jury v/ere justified in indulging 
in the presumption that the lights were still burning on their 
car at the tiine the collision occurred. 

There is another reason why we thinic the evidence 
was properly aciaitted. It tended to show tliat Sari R. Howard 
used due care and caution for his own safety at the tiirie he 
left the city of Rockford just a few minutes before the fatal 
accident occurred. The evidence clearly shows that Charles 
Howard was driving the automobile when it left Rockford, and 
after liie accident he v/as sitting back in the driver's seat 
in an unconscious condition, and his brother. Earl, was 
sitting at his right. The negligence, if any, of diaries 
Howard, the driver of the car, could not be imputed to Earl 
Howard who was ridinr; as guest in his brother's car. This 
rule is clearly stated in the case of Thomas vs. Buchanan, 
357 111., 270, at page 277, as follows: "V/hile tlio deceased 
was required to exercise due care and caution for hie OT/n 
safety viille riding in the Automobile of Anderson, yet, so 
far as the evidence discloses, he had no authority over Ander- 
son in the operation of the autoiaobile, and no agency being 
shown, the negligence of Anderson, if any, cannot be imputed 
to the deceased in a suit brought by his legal representative 



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14. 
agaiiist a third person to recover damages for injuries sus- 
tained by him vjliich occasioned his death. (Ilonn v. Chicago 
Railway Co. 232 111. 378.) Tlie question of due care on the 
part of the plaintiff's intestate is alv/ays a question of fact 
to be submitted to a jury viienever there is any evidence in 
the record vtrhich, vdth any legitiraate Inference that may 
reasonably and legally be drawn, tends to show the exercise 
of due care on the part of the deceased, " 

It is seriously insisted that the evidence failed 
to show that there v,'aG any negligence on tlio part of the defendants 
in the operation of their truck, or that their negligence was 
tlae approximate cause of the injuries to the plaintiff's intestate. 
The evidence is uncontradicted that, after the accident, the 
heavy truck of the defendant was standing in front of the private 
driveway froin the gravel pit headed a little bit to tiae southeast 
and covering nearly the #iole paved portion of the highway; and 
that there v/ero no lights burning on the truck at that time; 
tliat it was very dark. 

The plaintiff's amended cociplalnt charged that tiie 
defendant violated the laws relative to I.Iotor Vehicles on the 
public highway, to wit, by peraiitting a truck to be driven, or 
to be moved on the highway in an unsafe condition, and which was 
not at all tines equipped viiith lighted lamps, etc. Tlie evidence 



-3.C aiiiat) •isvQo^ JariijagB 

9rfi no QiSi: il^niiiip " .06 Y^wIlaH 

ijc. - j-iJa«>./AiI ^^ 'I'll sin lalq exict lo iiaq 

;:]nBi;i© 4n;lAXqsJ!00 i)s>XxioflaB a'llicfaJtjaXq eiiT 
sonejblvc r^jal ^^ifsll i#4w i>^qql«p© seadi Xxb is ion 



15. 

shows that the defendents violated this provision of the 
Statute by driving the truck onto the hlghv/ay after dark with- 
out any headlights burning. If ti:ie headlights of the truck 
bad been burning as it approached the highway and as it entered 
tlie sane, the beains f roei the light would tiave been extersied 
across the highway. Approachin- cars coiild see that there 
might be danger alicad of thera, where a truck unllghted, Eiight 
not be visible to a driver of an approaching car until after 
the truck had passed the brick pillars at the entrance of the 
gravel pit driveway. 

This was a heavy truck as its length was approximately 
the w id til of the paved portion of the highway. The photographs 
show this to be a regular gravel truck with a steel bed. The 
evidence does not shovr just ho\w the truck v/as driven onto the 
highway, but the circumstances disclosed after the accident 
showed that it was driven tlxere by one of Ihe defendants, Raymond 
Hart, as the agent and servant of Cliai'les Ind, and that the 
driver was sitting in the driver's seat of the truck after 
the accident. 

The appellant insists that the photographs shovir that 
the right front part of the Howard car stru.ck the right front 
part of the truck of the defendant, and claim that their con- 
tention is supported by tlie photographs Litroduced in evidence. 
There is no question but that the right front part of tiie Eov/ard 



Oiut 



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15 » 
car csiie in contact v;lth the front of the defendants' truck. 
The plaintiff contends that the right front part c£ the Howard 
car struck the lef'c front part of the defendants' tinick. An 
examination of plaintiff's S:xhiblt 1, and defendant^* S?iiihit 
1 and 4, ?/liich are photographs of tiie defendants' track^ clearly 
indicate that the defendant is mistaken in hov.- this collision 
occurred. The defendants' Exhibit 4 especially shows the right 
front part of Mine defendants' tiuck. It will he noted that the 
bumper is torn loose fron the left front side of the truck. 
The shell of the radiator is broken and pushed to the ri^it. 
Defendants' i;:xhibit 1, the photograph of the left front part 
of the truck sliows tnat the fender is ciushod. The left side 
of the shell of the radiator is broken and pushed to the right, 
and the bumper is torn off at the left. The left side of ttie 
shell of the radiator is broken and shoved to the rl{j.-it, and 
the viiole r>adiator is pushed to tlie right. Plaintiff's E:chibit 
1 is also a photograph of the truck and nearly a front viev;. 
It shows that the loft front fender of the tiuc.c is crushed; 
that the shell of the radiator is pushed to tlie right. It 
seems to us that the jury could believe but one thing, that 
is, that the Howard car came in contact \vith tiie left front 
part of the defendants' truck and the consequential injuries 
resulted. 

From an examination of the testimony showing the 
position of the truck standing crosswise on tlie road, the 



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^ix^il edit c" ^:>:':^-;.:^ ::^.3 /:e;ic'xa 3.; 'tc .:j . 



. ; ilerfe : " " ' 



,wQ±v drioil J3 x-i^ixson has :iiot*t;i eili to iiceiso:torfq 3 08ls ei i 
{f>9rfatn;o' al :iioOT;t erid lo *r95ne1 drioil cJ"l8l edi :tBJ:ii awoxliB il 

iUiij ^_.i^..uj •cfiic J iKf ovellsd '''" — ' ■". / ■' .iiu.f:f si; oi ameoa 
erfi ,I)jBD'i er'J no oalifaaoio srriJbaacfa ?[oiJ«i:f ecii lo nolUBOq 



17. 
pbotograpla showing the damaged part of the defendants' truck; 
the trucl: standlnfi on the road without any lights to v.- am the 
Howards of the danger ahead, and ail the evidence, it seenis to 
us that the jury '^yas justified in finding that defendantc v;ore 
guilty of negligence, as charged in the plaintiff's complaint, 
and caused the death of plaintiff's intestate. There is no 
complaint niade that the jury v;as not properly instructed 
relative to the lav;, or any nis conduct on the part of any one 
that might have prejudiced the jury or the verdict of the jui^y 
is excessive, in favor of the plaintiff. We find no reversible 
error in the case and the judr^Jaent of •frie trial court is 
affirmed. 

Af filled. 



.VI 






■J* •*«,.. 



.-, »\ [llS^jf Ctttf- A\ra 



sdJ. jbtofl se«o»di rJ. .:iCiST;'J 



42430 



MRS. A. N. BRODT and A« N. 
BRODT, 

Appellant s> 



Appel 





AO Q Q 



PEAL FROM 
) MUNICIPAL COURT, 
OF CHICAOO. 





fPRESlDING JUSTICE O'CONNOR DELIVERKD THE INIOJTOf^jIr'^Cd^T. 



Plaintiff brought suit to recover $300 which she had paid on 
account of the purchase price of furniture and for #700 claimed as 
damages on the failure of defendant to deliver the furniture, 
which had increased in price. Defendant filed its defense and a 
counter-claim. The defense admitted defendant had entered into a 
contract with Mrs, Brodt on May 17, 1941, for the sale of furniture 
to her but avenged thot the contract of that date "was merely a 
hasty resume of the price and general listing of articles given" 
and averred that the contract was an oral contract and not evidenced 
by defendant's written letter of May 17, The defense further set 
up was that the furniture was selected by plaintiff and was to be 
mad^ by defendant, for which plaintiff agreed to pay fl,394, ^t300 
cash, ^300 on delivery of tne furniture and the balance, t794, in 
monthly payments of ^50. Defendant further averred that plaintiff 
would make a selection of the fun:iiture within a reasonable time; 
that defendant was ready« able and willing to deliver the 
merchandise she had selected "but the plaintiff refuses to sign a 
conditional sales eontrant" for the furniture "as she agreed to 
do" and that the furniture selected was on hand at defendant •* 
place of bueiness and had been tendered to her repeatedly and 
that plaintiff had neglewted to select certain pieces of furniture 
the sales price of which a^rgre -ated 5^188, 



hj p. 054^2^ 



( 

^**^-..^ ( tSCOES 



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jb orifl »Ba9'i9b n*l b&Iit tfrtaiJii'^t^Cr .soiiq til f>»eii9TC0fli Asri iiol/lv 

eiu^lxJit^i lo ©X*s9 &iii tot il^hX. tVI %Bi^ Ko ^i'^oia .s'lM iliTiw toMtSnoo 
B xX^'^a saw" ©3"^ t&Uc f ^oa-c^isco 9di i^s;& i>9^tsr7A tmi tad o^ 

c^es iwirfti?! ©ana'^efi 9£iT .VX -^^R to /sa?*©! neS^Jlrfw a • :J'nAl)n*l»J& ^cf 

sG o<;t SB'S bna t ilitniAXq ^d i^SooaXae asw f^rnjilmul ssii iadi bjbw qtf 

OOSJS t*6S*|# ^»G o* JaasT^ 'ilJtJxsi.aXq xColtlw no"! tiasbua^ei) xcf ^bam 

al ,*^6V« ^aooKX^^cr adu Arte anuJlirxtrl witf to ^iav2Xei> co OOd «r£Bao 

'^iiJaXaXq *iiri* Jba^iavii i6ii*T:x.<'5: *in:bnela(I .03$ Ico a^naaxaq xld^aoa 

: rJ:f 8Xcf«aoa£«'i a nliii^Xv ai&tlxnj;^'! ad;r to noiloaXaa a BJijm bLuom 

Bdi imll?)b ot s^iXriw bn& alo'a ^%£>Aefi sis« ifoaivaalaJi ;ritc{;f 

B xr^ie; o;?^ 3 9ai/%a^ ftliTni^Xq eil^f tJ'iAif" Md'oaXaa Jbaiil axia aal&iiadonaM 

ot ftgsrr^jjj axle Sja" tm;;fi«iii^ i^a:f io1 " d'c/ai^-floo naXAa XACoX^iJbaoo 

§t^ ia:zhaii1eb tfs £«i^'jc1 nc bjs" fioroaXos 9>*tir$ laittl axf^f ^*ri;> ftoa "OJb 

Jirm x-tfi»tf-»q9's T»f^ o^ |jS'a©6n«3' ia?9«f £)jHri i>nfi aaaclaucf lo ^tt&lq, 

• Jlflni/I to aaooiq nXxi^fifJO ;fo9Xia o^ 5a*»aX3«ii bati. tllJni/'Iq i&tii 

•38X| Ba^A? a^ajB dolrfw to aoliq aaXsa adtf 



By the oountsr— eslaim A. N, Brodt was made a party defendant. 
It set up substantially the ssune facts as those set up In the 
defense, that iir, and Mrs. Brodt had selected articles of furniture 
aggregating $939 and that defendant was ready, able and willing 
to deliver the furniture if Mr. and hlvb, Brodt would sign a 
conditional sales contract as they hi,d agreed to do. That since 
Mrs. Brodt had not selected the furniture within a reasonable time, 
it had increased in price bo that defendant was required to pay 
more than it ould have been obliged to do had the selection been 
made seasonably. It was further alleged in the counter-claim that 
Mrs. Brodt orally employed defendant to supervise alterations in 
her home, changes in electrical installations etc., for which 
defendant claimed SIO per hour for 19 hours. 

There was a trial before the court without a Jury, a finding 
against plaintiffs and in favor of defendant on its counter-claim 
and Judgment was ehtered against plaintiffs for %906, urs. Brodt 
and her husband appeal. 

The record dis<loses that defehdant was in the furniture 
business and dre* Brodt was desirous of buying some furniture and 
had consulted with defendant's representatives. May 17, 1941, 
defendant wrote Mrs, Brodt a letter in which it stc.ted: "We agree to 
furnish items of furnishings listed below at a total cost of ^^\^ 
$1394,00, payments to be $300.00 now, 0300,00 on delivery, and 
balance paid mo ithly at ^50.00 per month without interest,*' Then 
follows a list of the several articles of furniture and the letter 
concludes: "Above is merely a hasty resume of price and general 
listing of articles. Selections not already made are to be made 
by you under our guidance, " Upon receiving this letter Mrs, Brodt 
made out her check for ^300, delivered Itvto defendant and the 
check was paid. There was some delay in making the final selection 
of all the articles of furniture by Airs, Brodt and about two 
months thereafter, Mr, and Mrs, Brodt and represent tives of 
defendant met and the matter of the delay in makln; : the selection. 



' .a 

9^jafUmit txi adlol-t'ifi d«;ro«Is2 b&A ^botS. •eiti Sob ,nM i&di ^eanslel) 

gitXII^w lins 9X0S tt&^-i'i «-^»' Ja«ftii«i©i> tjacf;r' Bnja Q63t sisi:f£3«nqiS« 

,0 ii.'i _ , -"X.- li e'Ufitixni;^ sxi* tevilai) o;f 

^erdt oXcfscocaci's a nixl;flw o-wiisnul edS 6«7oei©a iton JE>sitf ^BorrB •aiM 

iq oi, i&©'i«iiipB*J: a-isr ^asf)£i©l©& ^^.afl^.'oa ©oiiq ni b9stR»notU bad tt 

osatf aoWo«iefi miS b&si ob oi SegiXdo «®8Cf sviid f>X«o ;Ji a£fl;t <«o« 

wXjXo-'a;f^?iwoo «/i? nX JbejjsXX^ tmiiisjt n&vi il ,yi.L6RC.os&9a ^h^ai 

I BaoiA&i®ilB »GtvtequB 0^ iti&bn^tnb Jis^oXqm© xiXXsio iboiQ .iiii 

.siuofi tuoxC i«q OX'; feiMJ^XaXo ^aax>n9l«I> 

jsiAlo-ieitaiOQ Btl no ^luafjno : , t'tl^aX«Xjq ifaaUg* 

tbotB .81; . : sl^Jt'/sXsXq iTenijaga Bsie^J^iS* aaw J^cwasfeat, fin* 

9*ttjila.%ul 9cii fii a/5w d'it*ij3£f»'i9& ^.ori3' sseoX -ai^ friooei edT 

Ma *.'ri;-;*XrKi;t sisaa jsxii^wd !to awc/iiasfj a^w ^JboT.g .siM 5ns aasflXaucT 

^li . . >vI;JjB3'n»eeiq©i a * *iii;ii>fi«l9J^ ii;JXw bBiLusROo bs^ 

07 i'si^ii; 3 1'" :bsir:ta Ji iioXrfw ai isd-^sX 6 ;f&€«G .aiM s^oiw ^JnjsXinalsi) 

to ^jnoo XscU toXscJ Sod'eXX B^nXdeXrrxwl: to a«9;tX xieifWixt 

5n>j txiovlleib no Ov. ,0 s;; ^is/ofl OO.OOCi ad o;f a^xjaas^isq ,00,4'0£X^ 

ficerfi " ,ta»l0;^Jii ;fuoa;fXw d^^nom i©q 00,05$ ^s xl£t.om bl&c aooAXBCf 

-; ':! 0X1? Dfl« <j^y;tiini;l to aeXoid-is XerteYaa an'd^ to ifeXX b avroXXot 

X.'3-i9f£8g lilts 00I1 [ to aajjaat ^^sad a X-i®^*^ al avodA" teeJbwXonoo 

3i)£fi; 9u Q-f (nil 6l>&«s xiJ««^X iioX^osXsi] ,a«XaX*i« to gnX^aXX 

, -lii i9?*eX eldi srilTXoo?^ no , -acb/JTS iwo lobms uox \(S 

adi btm ia£l)ti9l9b otv^l f>a^©viXof> ,00S^ lot Jlosrio nsd ;J^i;o a£>«a 

xxoXJosIiiiF! Xiuiit Oil? ?^K£7.Cj9m nX x'-^*)-'^ A«<oa s^w ercajdT ^Xaq Bisw jtoado 

owJ ?wod:;t- ftn* iJi)Cn. , .n a'lu^JXrnjjt to aaXoX^i^ axis' Xija to 

to B9vl:fx;^<v98(mc;t<^ ^Aa ;}'£>aici} .siM JbiiB .iM ^te^tjtvx^tii arl;fflOJB 

tXioX^^oaX'SR ad;)' vifiXaf-aro ai -^aXeX) ericf to isJtam ad* bn& ;fajfl ;fn£iiaat9£> 



s. 

the Increase In price, and whether defendant would investigate 
the Brodts* financial standing to determine whether credit should 
be extended were discussed. 

Mr, Kepley, who wae president and treasurer of defendant 
corporation and Virginia McV/illiaBis, who had been employed by 
defendant for about 6 years, testified that at these meetings Mr, 
and Mrs, Brodt agreed to sign a conditional sales contract before 
the fximiture was delivered. The Brodt s testified and denied that 
they had made any such statement. 

The evidence is further to the effect that defendant refused 
to deliver any of the furniture until the Brodt s vovHd sign a 
conditional sales contract and this they refused to do. That Mr. 
Brodt said when the furniture that was then ready for delivery was 
delivered, he would give defendant a certified check for the §300 
as the contract of May 17 provided. The parties did not agree, 
the furniture was not delivered, and Ms. Brodt filed her suit, 

A witness called by plaintiffs gave testimony to the effect 
that there was no general custom in Chicago which required the 
purchaser to execute a conditional sales contract xuider facts 
aiubstantlally similar to the facts as disclosed by the evidence 
in the cage at bar. Two witnesses called by defendant gave 
testimony to the contrary. The court in deciding the case said: 
"I will uphold the custom he is required to sign a conditional 
sales contract, ■< and then entered the Judgment as above stated. 
Ih this we think the court erred. Defendant's pleading set up 
that the contract between the parties war oral and that the 
Brodte agreed to execute a conditional sales contract. In these 
circumstances, obviously the question of custom was of no 
importemce. If the Brodte had made an agreement to execute a 
conditional sales contract and it was a valid and binding obligation 
they would be requited to carry it out regardless of custom. They 
denied that they had made such an oral agreement. The cou t did 
not pass on the question whether such an oral agreement had been 



i: 

*fj6.5isf>'i9l> to t0rMfEB«fif baa ttyoMsftTcq «i3W oriw t-sc^Xq©. . 
,iU asM=fi*»©fii ©8«ff* *B *»ri* h^ltl^tini tSriA*^ 8 ^irods not *fl3f>net«.5 

'U'i'Yi xmitf .3M# &fls taai.tijoo eelBo XAi-:ic>l;J'xi»coo 

OOjt • '';^ili;ti9'» jBtJ'SjE.fcittd^Wfe fvJt^ Mw©?r oil ^benerrll&b 

»90*s:5e ^ton JE>Xf> 3»13'ijo<j onT .fecMvciq tX y«M lo tosntaao 9ii"J 8« 

©c«fi©.QiY0 9ii3- \;cf l>«aoXoisi n .;;j- o;r i,3Xi:fliia ^XX«J3'nB;J-8dW8 

Xjwj6Xt±A>isoo fi a^la 0^ fi^itXtrps'x el ayct moi^iwg «fcf:tf feXorfqcf XXdht I" 

oaailt ill .j-o^'Tifrtco ssXjbs X&act it Ibnoo s »^tf»<Kf.» o;<" Jb©i»^a ttibonrQ 
?i:fjB®iI«i0 ^iiil5«Xd' 6jx« AXXjst s esw #1 Sao ^oai^noo unlsn iBnoi^lhato 



4. 

made but decided that he would upiiold the custom which required the 
Brodts to sign a conditional sales contract. We think the evidence 
of custom was Immaterial and Inadmissible for another reason, namely, 
that It tended to vary the written contract which was In the form 
of a letter written by defendant to plaintiff on May 17, from 
which we have above quoted since the contract Is clear and unambiguous. 
By It defendant was to sell the Brodts furniture for |1,394, 0300 cash, 
$300 on delivery of the furniture and #50 a month thereafter. And 
the fact that the letter closed by stating, "Above is merely a hasty 
resume ©f prloe and general listing of articles. Selections not 
already made are to be made by you under our guidance, " did not render 
the contract uncertain or ambiguous- There Is no contention that any 
of the prices submitted are not the proper prices or that the 
furniture selected by Mrs, Brodt was In any way objected to, and the 
closing sentence merely shows she was to make further and additional 
selections of fumltiire which was never done because of the misunder- 
standing between the parties. 

Defendant having failed to carry out the terms of Its contract 
the Judgment of the Municipal court of Chicago Is reversed and ttie 
cause remanded with directions to enter Judgment in favor of 
plaintiffs for 0300. 

REVERSED AND REMANDED WITH DIRE^ TIONS. 

\ X 
Matohett, J,, and Niemeyer, J,, concur, \ 



^Qticv^ldmmmf bae- oaeX® 5I S'Oij'ri^fioo «3[J? »©0is &«#Oiip «r7««r» tntM »w rJoidw 

^^^itz9tmiii diaoig m Oet heiM ^^teSIinvt ©ft* to x^ertl^b no OOSf 

jfois acoitcsXsft ,as»roj!:tt« to ^iilaaiX Xatc^jm^ £ifl» Mut^q to «a«08»t 

.■U3 ^xsii* aoX^«[»?rieo Qit aJt 9^sd'? »aA>ciJJs*rf** 'x<^' isJU^'isoaw #oe«;fixoo axl* 
ft4;f tsiA$ Ti© i®ali«f ^«<jc^q asfi* !h»fl ona M;f :f Isadtra aaoi^c: ftri* to 

Xs£{&liti£)i}A fut^ <x«i-ii^'icu't ft;>i£is 9t sav etis Q'^^ds x^ 9*1- en •onAztasa ^aisolo 
"tabamisi ad&: to SQi/&o8<f «aoia '?.9V»« si^w lioiilw 9i:jjd'ijrs«'t t« snoiioalea 

toefX^Goo «^i 1» «irr.f?af *cfi^' t«o ^ti*© e* l>ell«t goivarf S-xisAiMlea 
mi^ SiHA b^sn&v^t el i^^s^UiO to ttisim laqX&iliism miJt to tmm^^l 9di 
to lov&t n£ tui^^fil lii^Sat oi ^aoite^'il& xitlv inoiammBt bumbo 

,00€^ lot 9'i^lialsiq. 



42474 
ALBERTA GIBBS, 

▼. 

TESLAR GIBBS, 



3201:1.339 



Appellant, ^ 



'^ 




) APPEAL FROM / 



y 



y 



/Appellee. 



SUPERIOR COURT? 
COOi 60UNTY. 



X 



,/ 



/ 




Hftl. PRESIDING JUSTICE 0'CO?\fNOR DELIVEhED TliE OPIMION OP THE CJoURT. 



By this appeal Alberta Glbbs seeks to revese an order entered 
Mar«h 12, 1942, dismissing her petition to vacate a decree of 
divorce entered June 10, 1940, 

The record discloses that May 13, 1940, a complaint for 
divorce was filed by Alberta Gibbs against Teslar Gibbs, charging that 
defendant had deserted her aritnout cause April 15, 1935« On the saJ^e 
day a giini-acns was Issued but the return states that it was "Not placed 
in hands of sheriff. •* iiay 16, three days after the complaint was 
filed, Teslar Gibbs filed his answer denying that he had wilfully 
deserted plaintiff without reasonable cause. June 5, following, 
Teslar Gibbs filed a cross complaint for divorce against Alberta Gibbs 
chargi g that she desept*d him without cause April 15, 1935, and on the 
same day there appears in the record an answer filed by Alberta Gibbs 
denying the charge of desertion. The same day a stipulation was 
filed which recites that by agreement of parties by their attorneys, 
the cause is set down for hearing on the covinMr-oomplaint and 
answer on the Default Trial Calendar, On the same day, viz., June 5, 
the report of proceedings recites that the matter came on to be 
heard, both parties being represented by counsel; that evidence was 
heard on behalf of Teslar Gibbs in which he and Vei^a Hill gave 
testimony to the effect that Alberta Gibbs deserted Teslar April 5, 
1935, The report of proceedings was filed June 10, 1940. on that 
day a decree of divorce was entered on the coun^'^r- complaint in which 









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2. 

the court found the parties were married January 31, 193£, in Chiotigo, 
and that Alberta deserted Teslar April 5, 1935. Nothing further 
appears until about 20 months thereafter when on February 25, 1942, 
a notice was filet with the clerk of the Superior court by Ellis & 
Westbrooks, attorneys fpr Alberta Gibbs, a( dressed to the counsel who 
purported to represent plaintiff and defendant in the divorce proceeding, 
stating that they would ask the decree of divxjrce be vacated in 
accordance with the prayer of the petition then served on couneel. 

In her petition to vacate the decree, Alberta G-lbbs swears that 
she never at any time had any notice or knowledge of the institution or 
pendency of the divorce suit until Janua y 5, 1942; that she had not 
employed the attorneys who purpor ed to represent her in the divorce 
proceeding; that she had nothing to do with the case and knew nothing 
of it until 1942; that she had no notice of the cross-complaint filed 
against her; that she was never served with summons or notified in any 
way; that the return on the siimmons shows it was not placed in the 
hands of the sheriff for service; tiiat she was living with defendant 
Teslar Gibbs as his wife at the time the suit was brought. May 13, 
1940, and continued to live with him as his Ife except for "possible 
interludes during which there were temporary separations" up to and 
including December 31, 1941; that the testimony taken on the hearing 
of the cross-complaint for divorce filed by Teslar Gibbs given by him 
and by- toe atiher witness, Verna Hill, was knowingly false and 
therefore the decree was null and void. Other allegations are in the 
petition but we think it imneceseary to mention them further. The 
prayer was that the decree be set aside and vacated. 

Upon the filing of the petition a rule was entered on Teslar 
Gibbs and attorneys Ellis and Taylor to ans.er the petition within 
10 days and the matter be set down for hearing, March 11, Gibbs 
filed his answer denying most of the alle ations and averring that 



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3. , _. . ' 

Alberta had full laiowled e and notice of the divorce suit. On the 
hearing plaintiff gave testimony substantlaJ.ly sustaining the allegations 
of her petition and in addition ta«tlfled that she talked to attorney 
Taylor before the suit was filed but told hlra she did not want a 
divorce. Attorney Taylor was called and testified that he flr?t talked 
to Mrs. Gibbs May 6, 1940, at his office and that she asked him to 
file the divorce suit but tkat she did not have any money to pay, and 
that afterward the court costs were given to him by the attorney for 
Teslar Gibbs, and the suit was accordingly filed, Tliat after the suit 
was filed and defendant had answered, ,the matter was continued a number 
of times because plaintiff could not get away f3?om her work to appear 
in court and that she told him her husband could frove his coiinter- 
complalnt if he wanted to. Thei* is other evidence in the record. The 
court saw and heard the witnesses, found In favor of defendant, and upon 
a careful examination of auLl the evidence in the record we are unable 
to say that his finding is against the manifest weight of the evidence. 
In these circumstances we are not warranted in disturbing the f 1 idtng 
of the chancellor. 

Defendant further contends that the court was without power to 
entertain the petition because It had lost jurisdiction 30 days after the 
divorce decree was entered. There is no merit in this contention. If 
the «ult was filed without plaintiff's authority, the court had no 
Jurisdiction and any order or decree it might enter was void and might 
be attacked at any time collaterally or otherwise, Rybarozyk v, \/eglarz, 
204 111, App. 232; Sherman & Sllls» Inc. v. Journal of Qoramerce , 259 
111. App. 453, Moreover def enchant* s contention cannot be entertained 
for the reason that both parties took part in the hearing and waived the 
question of the court's Ju isdlctlon. Zandatra v. Zandstrat 26 111. App. 2 
2d3» and cases there cited. 

The order of the superior court of Cook county appealed from is 

affirmed. 

ORDER AFFIRMED. 

Matohett, J., and Niemeyer, J., concur* 



{r 



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..beflnclll 



320 i*A.« 



February iPferm, 194.3,» 



42583 



JOSEPH K* GORMAN and „..Jffli"(lORMA!^>-^«k,. 
,^ ^pellants, ) 




'd- 



GENERAL OUTDOOR ADVERSE SING CO., 
INC»^ ar corporation, 

Appellee* 



) 



) 



APPEAL FROM '^'*~- 
MUNICIPAL COURT, 
OF CHICAGO* 




MR. PRESIDING JUSTICE 3 'CONNOR DELIVERED THE OPINION OF THE COURT. 

September E4, 1941, plaintiffs brought an action against 
defendant to recover $K>0 for rent for the jeax beginning July 6,, 
1941 and ending July 6, 1942, claiming that they were the owners 
of the property which vae being occupied by defendant as a tenant 
at will. The defense iaterposed was that defendant was in pos- 
session of the premises under a valid written lease dated April 5, 
1940, between Williaa A. Snyder and defendant for a year, begin- 
ning May 7, 1940 and ending May 6, 1941, with a right in defendant 
to renew the lease and that it had exercised its option to renew 
the lease for one year. There was a trial before the court without 
a Jury, a finding and judgment in defendant's favor and plaintiffs 
appeal* 

The record discloses that William A, Snyder oimed the 
premises in question, which were vacant, and located at the inter- 
section of Elston avenue and N. Hamlin avenue, Chicago* June 7, 
1939, Snyder and defendant entered into a written lease whereby 
the property was leased to defendant for s period beginning 
May 7, 1939, and ending May 6, 1940, at an annual rental of |100, 
"with the right to the Lessee to extend this lease from year to 
year upon the sane terms and conditions, the total of such exten- 
sions, however, not to tjxceed five years; such right of extension 
to be exercised by giv£ng written notice **-*'^ to th« Lessor *** at 
any time during the l?8t sixty days of the year next preceding the 



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2 

year for which such right of extension is exercised*" The 
lessee was given the right to erect and maintain advertising sign 
structures and equipment on the premises* The lease further pro- 
vided: "The Lessor reserves the right to terminate this lease by 
giving thirty days' notice in writing by registered mail to the 
Lessee, in the event that the Lessor sells or improves the demised 
premises "by erecting a permanent, substantial building thereon«. " 
Apparently the terms of this lease were carried out by both parties 
and a similar lease was made on April 5, 1940, demising the premises 
for one year beginning May 7, 1940 and ending May 6, 1941> at an 
annual rental of ^85« 

April 3, 1941, the lessor, Snyder, wrote defendant, tenant, 
a letter in which he said: "Will you please remove the G-en'l. 
Outdoor Advertising equipment from my lot on the Southwest corner 
of Elaton Ave* and Hsunlin. I do not wish to renew the contract 
this year on that lot." May 6, 1941, defendant sent Snyder a 
notice in writing in which it stated: "Please be informed that 
pursuant to the provisions of our lease with you of April 5th, 1940 
covering the premises described ^'' "■'' '^ Vacant premises at S. W* Cor« 
Elston & Hamlin Ave. Chicago, 111* 

"We hereby exercise the privilege and option to extend said 
lease for one year of the period therein provided, that is from 
May 6th, 1941 to May 6th, 1942, upon the terms and conditions in 
said lease contained* " 

On the following day, May 7, 1941, Snyder wrote defendant: 

"Having contracted for the sale of the lot at S. ¥• corner of 
Elaton & Hamlin Ave. Chicago, 111. you v/ere notified by me both by 
phone and in writing more than (30) days prior to May 6, 1941 that 
your lease on the above property would terminate on May 6, 1941 



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3 

and I asked that your signs be removed* 

"I am returning to you as cancelled what you saw fit to call 
a privilege and option, in as much as this lease has already 
terminated^ It hes come to my attention that as of May 6, 1941, 
your signs were still on the property- The buyer has requested me 
to notify you again to remove the signs immediately^ " 

May 31, 1941, plaintiffs by their attorneys, wrote a 
letter to defendant in which it was stated: "You Are Hereby Notified 
that the iindersigned are the owners of the premises formerly owned 
by Willism A. Snyder, which said premises are located at the south- 
east corner of Eleton Avenue and N. Hamlin Avenue, Chicago. *** 

"We Hereby Notify you that we elect to terminate as of July 6, 
1941, your tenancy of said premises, 

"We hereby offer to rent to you the above described premises 
for a period of one (1) year beginning July 6, 1941, and ending 
July 6, 1942, for a rental of Nine Hundred (-^gOO^OO) Dollars per 
year, payable in advance, " and that it would not be necessary for 
defendant to notify plaintiffs of its acceptance of the offer but 
the acceptance would be signified by allowing the signs to remain 
on the premises after July 6* May 7, defendant enclosed its check 
to Snyder for the annual rental of $85, which Snyder May 13 retiarned. 

Mrs, Snyder testified that she signed the name of her 
husband, William A. Snyder, to the lease of April 5, 1940; that 
when the lease was presented to her by a reprejsentative of defend- 
ant, she telephoned her husband who told her she might sign the 
lease for one year. Neither the representative of defendant, 
William N. Stanton, nor Mr. Snyder, nor the plaintiffs testified* 
Plaintiffs offered In evidence a warranty deed dated May 31, 1941, 



5 

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lol "^iBeaeoefl sd Jon dXjjow ^i t^At bn& '^■^i^a&rb& nl sXcJBAjBq tOeei 

iud 'isfio arid- lo sonsd-qsooB sli lo alll;tniBXq 'stll^on ot iJnBJ&flelsJb 

fiifimsi oi sn^ie erfd- gniwoXXs Tid". ftQllingxa ©cf il^Xwow sofueJqeooB eri;f 

jiioarlo ad-i DsaoXons Jnsijnalel) tV tcbM #9 ^jXut ned-ls aaaimeiq «ri;J no 

»£)sniJj-;re'X 5X y.sM isfjijnfci rlolxiv/ ,de|. lo Xc;^n9'j XBJjnns erIiJ 10I i©£icflS oi 

isri lo QHiBH exiAr &«ngla aria iBdi bBlltisei i95>£na ,8iM 

t&ili ;0:^GX ,S XJ:tqA lo 9ss9X arid" o;t ^isfiYn© ♦A auBlXXiV ^£>nBcraw4 

-fcnaleJb lo 9Vl3'fi!fn98 9iq9'x b xd -serf cd- £)9:rne89^q aew eaasX srid" nsxlw 

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^X^ex »Xi:' \CJ8M fied-Bia 6»»J3 ^cJaani^w b ^Oiv^J>^v« aX &»«tlo ^lllxTni^sX^ 



4 

whereby Mr. and Mrs* Snyder conveyed the premises in question to 
plaintiffs in consideration of |3,500, and there Is evidence to 
the effect that #1,000 of the purchase price was paid in cash and 
a mortgage given for the balance^ 

Plaintiff, Jane G-orman, is the daughter of the Snyders 
and Joseph K. G-orman is her husband* 

Plaintiffs' position, as stated by their counsel, is 
that "Snyder sold the property to plaintiff Gorman. Defendant 
was given three successive thirty-day notices to vacate in com- 
pliance with defendant's alleged lease. If one assume the supposed 
lease valid, still it has been terminated according to its terms*" 
We think this contention cannot be sustained* The lease provided 
that it might be terminated by the lessor in case he sold the 
property and gave 30 days' notice in writing to the lessee. The 
letter of April 3, 1941, above quoted, was not In compliance with 
the terms of the lease. In that letter Snyder, the landlord, asked 
defendant to remove its advertising equipment because he did not 
wish to renew the contract. There was no mention of the fact that 
the property had been sold and there is no evidence in the record that 
it was sold vmtil the date of the warranty deed, May SI, 1941» 
Defendant, by its letter of May 6, quoted above, advises Snyder that It 
had elected to exercise the option to extend the lease for one year* 
This was the day before the lease expired and came within the require- 
ments of the lease. The lease having been renewed before the sale 
was made, plaintiffs were not entitled to recover the |900 claimed 
by them. Obviously the letter of May 31, 1941, written by attorneys 
for plaintiffs to defendant, in which It was stated plaintiffs 
elected to terminate the lease as of July 6, 1941, and offering to 
rent it for |900 for the year beginning July 6, 1941, was ineffective. 
Plain''- ffs had no right to terminate the le&se, that was the right 



oi aol3a9up at asBtmeiq siii bsijsvfico le&icnE #aiM bna «nM \(l9iBd¥ 

ot 9on9biV9 ai sisiiiT fins ,003 15^ lo nolcTisiJifciafloo al J&lltial&lq 

baa risjBO ccJ fclsq sew aoi-sq searioiuq srl* lo 000»l|( issii ^oslls sri;f 

*»on.©Iscf ©rii" 'lol as vis »ss^3"'xofli a 

*bii&d9,u£i ted Bl HBffitO'B •X rlqaaoL fcn* 

-fiioo ni 93-3-03V oJ s9olJon ^t«I)-Tc;l'T:lrii' Qvlaasoojjs sdiriJ navlg a«v 

fesaoqqwa srll' 9!TUJ?B.a sfio 11 *@3B9l besslla a'^fflBfiflslsfe rid"iw ©onBlIq 

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■ act 

JriaXi ©rid BBW dsriit tsassX a^d^ ©Jsnla*!©^ o^ Ifi^Xi en besi att 



5 

of Snyder, the landlord, which he might exercise before the 
conveyance. In any event, the letter was too late since defendant, 
on May 6, 1941, had elected to renew the lease » 

But plaintiffs further contend that the lease of April 5, 
1940, was void under the Statute of Frauds "because the name of the 
landlord, William A. Snyder, was signed by his wife and she had no 
authority in writing to do so. This contention cannot be sustained* 
Evans v. Schwartz. 211 111. App. 573; Bowman v» Powell . 127 111. App» 
114; Cook V, Ciirry. 192 111. App, 182; McCormick v. Loomis . 165 111. 
App. 214. 

In the Evans case we said: "The defendant urges that the 
lease is void under the Statute of Frauds, and that, where a tenant 
occupies premises and pays rent under a lease void under the Statute 
of Frauds, he is a tenant from month to month. Our courts have fre- 
quently held that it is not necessary that a lease be signed by 
both landlord and tenant in order to comply with the Statute of 
Frauds, but that a tenant's signatiire is sufficient to enable the 
landlord to hold him to the terms of the lease. In such a sitviation, 
the lessee, having signed the lease and taken possession of the 
premises under it, and paid rent to the landlord, is estopped to 
urge that it is within the Statute of Frauds, by reason of not 
having been signed by the lessor, or by some one on his behalf, 
with proper authority. " Citing the Bowman . Cook and McCormick cases. 

In the McCormick case, [165 111. App. 214] (opinion 
delivered by Mr. Justice Duncan, afterward a justice of our Supreme 
court), the landlord brought suit to recover rent and it was urged 
defendant had a defense, "because the contract or lease sued on does 
'^ot bind him under the Statute of Frauds. The reasoning advanced 
his claim is, that said contract or- leasing is for more than 



8 

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i ft V 

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noiniqo) ri>I^ «qqA ♦III 56X]»9Bbo I'oi: niioOoK srit al 

erns'xqtfS luo lo 6oita.vt k bt&Titietl-i ,nBonjjQ soliJawL .iK ^d bBiQVllob 

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boonjsvfis srilnoassi erfT .sftwsi^ lo' " " ■ " it lefoni; miri batd ioa 

liBdt 9*40(11 >£ol a I jfniBfiaX 'lo Jost^noo jjla-i cviao ,ai iniel- " " lol 



one year and, to be binding under the Statute of Frauds upon either 
party thereto, It shoiild have been signed by both parties; that the 
signing' of said contract by the defendant in error by her agent was 
not binding on her, because her agent had no written authority from 
her to sign said lease, and, therefore it was not binding upon 
plaintiff in error. We think that the acceptance of this contract 
and the collecting of rent thereon by the defendant in error, al- 
though the acceptance was not in writing, was sufficient to bind 
the plaintiff in error, the contract having been duly executed by 
him before such acceptance* 

"It is now well settled by the weight of authority that the 
Statute of Frauds is satisfied if the contract for the sale [_ lease/ 
of land for a longer term than one year, or the memorandum or note 
thereof, be signed by the party alone who is sought to be charged 
whether he be vendor or vendee. " 

Plaintiffs further contend that the lease does not cover 
the property in question for the reason that the property was 
described in the lease as being located at the southwest corner of 
Elston and Hamlin avenues, when as a matter of fact it is located at 
the southeast corner of the two streets. We think there is no merit 
in this contention. In the lease of June 7, 1939, and in the lease 
of April 5, 1940, which Is involved In this suit, the property is 
described as being located at the southwest corner of the intersection, 
and a witness testified that he would describe the property as being 
located at the southwest corner of the two streets. Mr. Snyder, in 
his letter of April 5, 1941, to the defendant company, asked it to 
remove its equipment "from my lot on the Southwest corner of Elston 
Ave. and Hamlin*" And in his letter of May 7, 1941, to defendant 
he said: "Having oontracted for the sale of the lot at 3. W. cor- 
ner of Elston A Hamlin Ave. " The property was similarly referred 



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SBW "^^isqoiq siiit isjii noaaai sriJ 10I noi^asup nl ^£;fiaqoiq ssH 

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tnoiiooaigd'nl ari* lo Tienioo Je&wrlJuoa sri3' afB bsJsooX gnisd bb badiioaeJi 

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6eii9lei -^X'lfiXiaie a«w ^Jiac/oiq ciSf " *•▼* allmaB. A nc^faXiH lo lyn 



7 

to ty defendant in its communication of May 6, 1941, to Mr. Snyder* 
There is no doubt what property was intended and was actually de- 
mised under the lease* It was a vacant corner at the street inter- 
sections occupied by defendant with its bill-boards and for which 
it paid rent to Mr» Snyder, and neither party ought now be permitted 
to say that the lease did not cover the property involved* 

But plaintiffs further contend that: "If all of the con- 
tentions made by defendant were correct, the Court should have ren- 
dered Judgment for #85 in favor of plaintiffs* The defendant ad- 
mitted that it had paid nothing for the use of the premises*" So 
far as the record discloses, this question was not presented to the 
trial coiirt. There was no claim made for the iip85 in plaintiffs' 
statement of claim. The evidence showed that defendant sent Snyder 
a check for ^85 which Snyder returned. Of course defendant owes 
this amount* 

The Judgment of the Municipal coxxrt of Chicago is affirmed* 

JUDGMENT AFFIRMED • 
Matchett, J., and Nlemeyer, J«, concur* 



5* 

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•d-nu orajs alrld^ 
•69fli'-iillB Si osBOlriO lo :t'Luoo IsqloinuM sdi lo JneogJbwt »^ 
•aaMSI'5'HA THSMCaUL ' ' ' " 

•■'luonoo ».!: ,'X9-^9m9l}$ bnB »»L jd'jorio^tBH 



i»\ 



42466 

LILLY JOSEPHS, 

IGIO JO:'EPHS, 



320 I.A 




MR. J»9TICE MATCHETT DELIVERED THE OPINIOH OF THE COUI T. 

May 3, 1941, Lilly Josephs filed her complaint under the 
statute against her husband, Icio, she alleged she had been a true 
and faithful wife; that he had deserted her and their children and 
failed to provide for them, although able to do so. He answered 
admitting the marriage and separation, but said it was for her fault. 
He filed a counterclaim charging cruelty on her part, she answered 
denying the charges, she prayed separate maintenance, he a decree 
of divorce. The court heard the evidence, entered a decree in fawor 
of plaintiff, gave her the custody of the children, ordered defendant 
to pay her $40 per month to support her and the children, and 
dismissed his counterclaim for want of equity. Defendant a peals. 

Plaintiff hag not filed any appearance. Defendant's brief 
argue* the burden of proof was on plaintiff to show she was living 
separate and apart without fault. He cites cases such a s Johnson v. 
Johnson , 125 111, 510, 514, and Augen stein v. AUR-enstein , 275 111. 
<, App. 18, which so hold. There is no doubt this is the rule aprjlicable 
in the trial court as to issues of fact. It is just as clear that it 
is not the rule ap 11 cable to weighing the evidence on this appeal. 
The decisive question here is whether the findings of the tr&al court 
are clearly and manifestly af;ain«t the weight of the evidence. All 

I presumptions, so far as the faats are concerned, are in favor of the 
decree. It is q\ilte true as a Batter of law, as defendant contends, 
that if the separation was the fault of both parties the wife is not 



,'^I [r; -A 






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^i:j to lovjil Hi e-ts ^jJ9xnBoooo ai^d ^>?^•«l e«i». •« «at o« ^2.--. :^-.>-.9tq 



\ 



2. 

entitled to separate maintenance. The fault which will Justify 
separation muBt be a fault from the viewpoint of the law, and the law 
does not require a wife to be a saint at the peril of releasing the 
husband from his duty to support her and their ohiltren. Defendant 
argu«8 that, as a matter of law, a husband is not guilty of desertion 
if his departure was caused by the fault of the wife and her misconduct 
does not need to be so serious as to give grounds for a divorce in 
order to justify a separation. This is quite true. In the light of 
these miles we give consideration to the facts of the record, 

Lilly and Icio Josephs were married at Vienna, Austria, December 
18, 1922. They continued to live together until December 31, 1940, when 
he left their home and has refused to return. During their married 
life she presented him with two children, a son, James David, who when 
this suit was begun was 15 years of age, and a daughter, Ellen, then 11 
years of age. The husband, wife and children, up to the time of 
separation, lived in an apartment at 1411 Greenleaf Avenue in Chicago. 

The records of cases of this kind are usiially voluminous. That 
is not time of this one. The wife gave her testimony. She produced two 
other witnesses; one her brother, who had at different times lived in the 
home, another, a neighbor lady, who lived in the Scune apartment building. 
Their t-stimony tends to corroborate plaintiff and to show she is a 
good wife and mother, perhaps not perfect, but bringing her children 
up well. Defendant testified in his own behalf. He is not corroborated 
by any other, and. his testimony falls short of establishing facts 
necessary to give him the 3?ight to a decree of divorce. 

He testified that on October 10, 1933, she hit him in the face 
three or four times. He took his hat and left, and she followed him 
until he reached the "L" station, upbraiding him. The quarrel this time 
was about the question of income. On June 17, 1936, she reproached 
him for preferring the girl to the boy. He says this is not true, that 



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3. 

he loves the boy as liuoh as the girl. He says he began to reason 
and "she hit rae in the Jaw with a fist". At a later time he discovered 
a loose tooth and had It removed. He does not say the hit made the 
dentistry necessary. The evidence showed without dispute (assuming 
these two Incidents to be as he relates) there had been condonation. 
The trial judge suggested this and requested proof of more recent acts 
of cruelty be given, Aoparently in desperation evidence was offered 
tending to show plaintiff had tried to poison defendant. Defendant said 
that on December 16, 1940, he was late coming home and that supper was 
served to him alone. He drank half a cup of tea and became 111. He 
told her she must have put samething in it. she said this was not ao, 
and that he must have eaten something before. Defendant says he had 
cramps that night and the next morning went to work and was sick. He 
could not know what the cause of it was, and he said he wanted to 
forget it because a similar thing happened years before and when he 
asked her about it she said, "Well, I haft something put in that because 
I v.anted your love to come back to me". Defendant is a member of the 
medical profession. He caused no analysis to l|» made. He continued 
to live with hie wife. He admits, "I ridiculed the whole thing", and 
manifestly, It was a proper subject of ridicule which a more chivalrous 
husband would never have used in a law suit. Clearly, we cannot hold 
defendant la entitled to a divorce on this evidence, Mor can we find 
the faults of Mrs. Josephs such as require a reversal of the decree in 
her favor for serrate maintenance. This family, evidently, during 
the first years of their married life lived in rather straightened 
financial clrcumatances. He has been a physician and surgeon since 1919 
and has taught at the Northwestern Unlve sity and the Y. M. C. A. in 
Chicago, specializing in ppyohology and psychiatry. He now has a 
position at the Kankakee state Hospital, Plaintiff testifies (he does 
not deny) she was Influential in securing for him the position he holds. 
He says, "3he is a lady of violent temper", perhaps she is. 

Their evidence as to what occurred on December 31, 1940, when the 
separation took place, Indicates well their divergent vlevypoints. It 



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4. 

was the husband and father's birthday. For four or five months he 
had not taken any oieals with his family, and Mrs, Josephs asked him 
to spend the evening with them, at least for supper. Jim, the son, 
was working and was late for the meal. Dr. Josephs became excited. 
She says, «He had already an appointment with a certain party he kept 
up previously for one year, he didn't want to be late". The doctor 
refused to wait for his son and departed, ilrs. Josephs says, »I said 
I will go with him wherever he goes. I am able to face the party 
whoever has the heart to take a father away continuously from his 
family for such a long time. In my hysteria I lid follow him, which I 
regret, and he threatened that he will never come back and he did keep 
his threat." The doctor's description in part corroborates, in part 
denies Mrs. Josephs' narrative. He says it was his birthday, and some 
of his friends had invited him to celebrate it. «! promised to attend 
that at a certain place. When I came home I asked for early supper. 
The supper wasreadjr^l I asked why it was not served and when I Sc.id 
I was invited to a party, I was explained it would be late and I was 
not going, *** Thei^ was a slight altercation between us, and when I 

saw her temper rising ^** It was a verbal quarrel, it might have 

led to a physical quarrel ^^^'^ In order to avoid that I went for my 
coat and hat and left. At the time she threatened to ixlt me. It was 
in the presence of the children. In order to prevent them seeing a 
scandal — — she ran after me and pursued me all the way. I took 
refuge in the »L' station. " He says finally "she went hdme and I 
went to the Y. M, C. A. Hotel and took a room. Since that time she 
has never asked me to come back and live with her, she did not write 
me a letter. " 

She testifies she has asked him to return, and this whole 
record bears evidence of her desire for him to do so. Every page shows 
his will to deseyj^ her and her will that he should not do so. He has 
deserted her and his family without legalnjustifl cation, whatever 
may be the infirmities of human nature which his wife possesses. 



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5. 

The trial Judge saw the parties and heard the evidence. The 
issues on this a 'peal are not issues at law, which are well settled, 
but of feet, which must control. We cannot find the decree of the 
trial court as to the facts is clearly and manifestly against the 
weight of the evidence. On the contrary, we approve. It will be 
affirmed. 



AFFIRMED, 



O'Connor, P. J,, and. Niemeyer, J., concur. 



o -.^roiih '(Hit h&lt texLTiAo «w .Ici;J"iioa Htm dt^tdv t'So&l lo *;/cf 



42537 Q Q ..^^^^^''^ 

WALTER SZXMCZAK, Individually and as ^f 
Executor of the Estate of Stanley ^"^^ ^ 
Szymczak and TlffiODOI^i.: SZYMCZilK, ^ 

Appelle§^ ) APPEAL FROM 



JEAK JAWOR, formerly jj^an Szymczak, 

Appellant. 




-^*€*K^IOR COURT, 
COOK COUNTY. 7 



/ ■ 

MR, JUSTICE MATCHETT DELIVERED THE OPINION OF THE COURT. 

TMs appeal is by Jem Jawor, one of three children of 
Stanley Dzymozak, his only heirs at law and next of "^X^, rrora a 
decree holding that the changes of beneficiary vinder certain insurance 
policies to herself were procured by fraud. Stanley Szymczalt died 
testate July 23^1-1941, at the age of 61 yeurs. Anna, the mother and 
wife, pre-deceased him May 31, 1939, The will was executed May 23, 1941. 
It named Walter eKeoutor and directed the estate should be distributed 
equally among the three Children, 

The father in his lifetime owned the premises known as 2286 
Blue Island Avenue, which were improved by a three story building, 
fitted for a store or tavern on the first floor and five 4-room 
iapartmente on the other floors. For many ye. rs prior to Stanley's 
dei.th, the family lived in one of the flats. Both the father and the 
mother died there, Walter and Theodore the sons lived with the family 
there until they married and went to their ovm homes, Jean married 
but continued to live there after the death of her mother and oared 
for her father and made a home for him until he passed away, she 
continues to reside there since his death. After the death of the 
mother, Jean lot only kept house for her father but secured employment 
near the home and earned from ^15 to $17 per week. The father was a 
coal hiker. He earned from $& to 128 per week. The children were all 
frequent visitors at the home. The family haid a boarder, who lived in 



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3. 

been made by the father on the policies in t e Western and southern 
Company, which reducod the value of these policies i to $2,647,17. 
VThen taken out, three of these policies of the ¥/esi.ern and southern 
Company were payable to the executor of the father. The larr;est 
policy, however, of ^2,000 ?jas payable to the mother, Anna. The 
beneficiary was changed on all the policies bel^ween September 5th 
and 7th, 1939, to Jean Jawor, The two policies with the Metropolitan 
Life Insurance Comoany contained a facility payment clause. The 
beneficiary in these policies was not chan ed. The policaies in the 
Prudential, when taken out, were payable one to Jennie Szymozak, four 
to Anna Szymczak and one to the executor. The last one of these, 
issued August 28, 1939, was originally payable to Jennie Szymczak. The 
beneficiary In this policy was not cimnged. In all the others the 
beneficiary was changed to Jennie Szymo«ak, now Jean Jawor. After the 
death of her father, Jean proceeded to mtke proofs of loss, claiming 
these policies v/ere payable to her, 

August 4, 1941, waiter, personally and as executor, with 
Theodore filed their complaint in equity, averring that the changes 
of beneflioiary to Jean had been obtained by fraud on the father. Their 
bill prayed an injunction, discovery and other re^llef , Jean answered, 
denying the fraud. The insurance companies, Prudential, Western and 
southern and Metropolitan, were made parties to the original bill, 
filed an interpleader, paid the amounts due upon the respective 
policies into court and asked to be relieved from further litigation. 
Appropriate orders to that end were entered. The cause was referred 
to a master, who took the evidence, found for the plaintiffs and 
against Jean Jawor and recommended a decree setting aside the trans- 
actions by which the father made Jean the beneficiary of these 
policies and ordered the payment of the proceeds of the policies 
to the executor. The cause was heard on exceptions to the report of the 
master. These were overruled and a decree entered in conformity with 
his reoommendations. 

It Is contended for reversal the decree appealed from is 



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9tit rs«txA .low-siX, nasi, won jJl^AOfiixosG ®JU~ir_di o;f fcejtwisfio esw "^siLoi^snad 

gxiimlslo ,eaoX io alociq eaUiU oa' jbe^eoooiq tts©X. ,isrf:fj3t lad to d;tB»Jb 

xUjtw ito^sjo xs SB ifjn.3 -^rXisfioaisq ('te^^ljaw »X,>CI ,*■ tei/^A 

T:i d;fi.,l: ed* no 5ji/jst!1 x*^ MiUcicTo saed Sari oa*!. o^ TctBlolltoxjMf 10 

»&€ntswanjB JtftSi, .^©IXs*^ •i9£i3'o i>as ^^ffvcoslE? ,flLoi;tom/t.«ri fu ia^Biq XXM 

^08 n^s^afl^W <l3Jl;fii9£)Jin:'I ,a©lasQ,)KOO oojss^iiani •rXT .fiw-ai'S: «xi^ snlx-o®* 

tXXicf X««i?.iio 9i{* 0^ a9i;?ii8q abain sidw tiisJXXcqotooM I>iws irterfJuoS 

«vi*3«qa«i $rftf uoqtr »j>.'.£a ad-ittiOHts »cC;t blaq ^'sdJbjBsXqnPifal nfi f>«Xll 

.noId'^SiJ'il "iotl'i'Tul moiI MvoXX^i *d o;f S>9JL»& r,tm tttfoo oinl a*ioiXoq 

bn» JSsfltiiilzS ot LfLjjol «0oad.&iv« »if;t ;<ood- orfv ,i«^aaB a of 

-afl^j"-!* Silcf aMaiJ Sj*.I • .o©!? jj befiixaawBOoei Iwcw itowja^ oaaL ;tsCiJLsSA 

eaarrJ 'io v^ iioltefiacf 9dt o&aL •X>i3ia tsstditBl arid' dolsivi xs! Btioltoa 

aaioXXoq axid- to aAseoonq nd^ to i.a.9a%&q Bd^ JbaT9l>'So bn£ aaiolloq 

B.d-^ 'io tioqe^c 9dt ct anoijJc^soxo no bt&oii aav 98j;r«o exn: ,nocf«o9r-9 arfd o;f 

iidX?/ x^-'^JH'so^cio tt^ fia'ialflB oanoafa a X}fti3 JbaXi/'i'iev© ©;?>» ©aarfT .laJaBa 

•axioi^rfiltnsriHoaoi aid 
ti fflcoil l)«Xs«qqjB ©eisai' 9d* Xsaiavet lol fe«iiflad"floo d1 JI 



4. • "^ - 

contrary to the evidence, and this is the only point we find 
necessary to consider. 

The fraud alleged in the bill is stated in P&ragraph 10, 
In substance it is that notwithstanding a sufficiency of funds in 
her possession to pay the premlumg on the policies, Jean falsely 
and fraudulently, with intent to deceive Stanley szymosak, represented 
to him that it was necessary for him to make a loan on the policies 
on his life to pay the current premiums, that he, placing trust and 
confidence in her and relying upon her truthfulness and representations 
to him, executed the instrumenta necessary to make her the beneficiary 
of the policies, at her Instigation and request; that she secured 
his signature to the applications in the policies of insurance "and 
thereby uttered false and fraudulent requests to defeni ant insurance 
companies, to name her beneficiary under said policies; that each 
of said defendant insurance companies believing said applications to 
be voluntary and truthful, changed the beneficiaries in said pollclesi 
so that Jean Jawor, formerly Jean Szymozak, became the sole beneficiary 
thereunder". 

The facts which we have heretofore recited are undisputed in the 
evidence. The appeal was not argued orally, but upon giving considera- 
tion to the case we requested oral arguments by the respective 
solicitors and they appeared before us, v/e particularly requested the 
solicitor for plaintiffs to point out in the record the evidence 
tending to sustain this crucial allegation of the bill. No such 
evidence appears in the record. Indeed, witnesses for plaintiffs 
gave testimony tending to disprove every charge of fraud made in the 
bill/ 

Mr, Turchan was the insurance salesman for the Western and 
southern Insurance Company and oollecjed the premiums at the home. 
He saya that he was accumstomed to collecti "the premium in the front 
room; that on one occasion Mrs* Jawor told him the father wanted to 
see him, and that he came out to the front room and the witness 
as^^ed him what it was all about, Stanley Szymozak then told him 



C'' 



-nw d^nloq Xiao 9>£ii ai aiilw iJii» 5»oa©i)iv9 erf.t o^ '^itsiifnoo 

^JneaeiotSTE v^BSOia^sB X®-^^^*^^ st-su:.' <»ial dtlv iXliaslu&uBi'i htm 

^ ^ .^iujli;;®';:.:, • ^'' 111 aixi no 

l>eiitft>ae «fip Smt ;v8&wp^' voi1-.«j?i:renl laif c-""* tsaiolXoq end- lo 

FiinsM aanSTiwr BtotLc oJtJ-BoJtXqqa ©xi^ oc? s'xirtfsnsia aid 

iioBti ^srf;r 58©iojtIoq fti^o 10MW ic*uioll:9ii«cf i«d •eisa 0^ tseirtaqmoo 

0;^ anoIi'^ssiXqqa &X^3,e ^f*Xv©iI®«^ B»i«Bq0Ot> •o/iATCiraisi r^nflfen^tel) J&jLsa la 

tisiXolXcq Mj&b al s9li^ioVt^->nB<i ^di b&gn.&do ilutditnl^ bna xifi*cwXov acf 

<>YX3'o©q»9i 9X2-' ^ omr^iia Xsip J&»i'ae,ap8t sw eaiio sri'S 0* noX* 

arftf Si9i^0«p®'3; x;X'xaXuoX3''Xsq ©iV •aJ^ 9«xotscf J&eijtaqq^ x^^ ^oa aio^XolXoa 

QoiisAiYe 3»d* Moos^ oxi- t ^^Xi^nXaXq t:o^ nolloiXoa 

dnsm oTi .IXlc; «>i:.;J "io iiai^ii^&llii X^jIovio aX£i^ alaiJaua o# sni.Sine:!' 

sllii-flJUXq '«<5>^ €»«J^^^-' ' r 0001 9x1* nX aiAftqqB sonsJblv* 

\XXlcf 
fees fn:o,te9'.V axiJ ^^col fueiceeXiaa eoitai^axxi ariJ a^w OiUiOiuT -^iM 
,©«fOrf Witt J>, R3it;Xin»iq ©xW i>©s|:ci9XXoo l>xi.a tfi^q«oO «oii«"xim«I tnssi^uoQ 
^ucn'i Oi(;t »il su;XxB9'xq srid' toeJ "^fffio^ftaujooja a^w ad *4ri;t 8t&« ©H 

UHQiS^l:! Oil'J liO^l iSCC'I ^i.Q'Sl CUlJ C.> J L'O 0'^ ^tiUl^ bOB jXttiXl 90B 

flLtd &Xcl rtBAi aJBsoK^aa XaXn«l8 ♦ttirocfjB XXe aar *X *Ariw aXil i)ft!(a» 



he wanted to change the beneficiary. As to one of the policies the 
agent explained to the father there would be no need to change 
because under the facility payment clause any relative, by blood or 
marriage, could collect. Nevertheless, the father insisted that he = 
make the beneficiary clear and change it. The witness says thatvthe 
first time he was asked to make the change he did not have the / 
necessary forma and promised that he would have them the next time, whicla 
he did. The witness said on cross-examination that he filled in 
the forms before the father signed them; that the father was present 
but the datighter was not, although she might have been there. He 
signed them all that day. This witness also collected Insurance 
premiums on policies belonging to Theodore and Walter. He remembera 
the Illness of the father and that he was sick for maybe three or 
four months. He talked with him sometime in April or May before his 
death. 

Mr. Oolasky was the agent of the Prudential Insuranc Company. 
He says that Jean (or Jennie) the daughter, was never present when 
Mr. Siymczak talked to him about the policies, and he never knew whether 
anyt -Ing had been said between her and her father about the insurance. 
He says the father had. the policy before him when he made the 
application for the change of beneficiary. The witness picked up the 
policy to send it in to the home office when the change in beneficiary 
was made, and upon its return from the home office he delivered 
It to the Insured and got his receipt for it. He positively states 
that en every occasion when he served Mr, Szymczak in changing the 
beneficiary on eny of the policies there was no other person except 
Mr. Szymczak and himself present. 

Each of the Metropolitan policies contained a facility of 
payment clause, which authorized payment of the proceeds of each 
•Ither to Jennie szymzcak or the ex^auifii* of th$ assured "^s estate. 

we hold that he fraud alleged in the bill is disproved by the 
evidence of these witnesses, testifyi^lg in behalf of the plaintiffs. 
It is« of course, elementary that the burden is on the plaintiff 
who alleges fraud to prove it, and it follows that the court erred 



•^■f) .booXcf x<^' J av id'j&Xe'x 'iJESfi spitt-. r^ ' r sym^rici \*lIlojs^ 9ii:t fBbau eai/BO«cf 

t>rfcrvr5-< -f n'<j!;-ja aesijd'lw ©a'i: .-iiloXlenacf arf* a2lijia 

.. ?.vsi£L toa bib &d aj^xi^e mc .- ,-■ -: -;..;,c saw ail sfiil^ trmtt 

, "x9n Bdi m9£it mr&ti bloQ^ ad tMil' jiS8X«««q Stan aenol ^.•^"0'^fi^r 

■N,-::.;-.:..vn ■ , ;i >- -v .^r(3|'^t ©rf^t i' • ':? -^^^iK:^ ^vnvr^fP! ■fr%r!i^'V -Kii- «^lot0Cf affilC^ --li--' 

9aiwnr.;8iii J&®;J^o _- -^nitis aX-... *,.,.b d'AcW XIb rairf;? Jbsixsia 

'masrsrc sH «i»tfXaW r>a IT ©^ jjiiXsiiOXsd atioiXoq no Bouifflstq 

■vu BBtxlt e<JTBm 'lol :rfoX^ ...... Q<ii imit btvi lexf^&t axi* to sadAXXi axl* 

nsrfw titer^siq 'seTsn rj >■ t '—-1 fi§u>6f) «iri;J- (ainnel, 10) KjaftL imt a"^a sH 
ori;t©dw RSflX '£9TSfi «£f X»iijc f.^-., _ioq «{;? ifyocfjs «jtrf 0^ l>«a£XAid" isLasoarcaiB .iM 

.c^-f^o-;'r«r f «,.;: i-f-f.rf- ■v«^'wr-'t -Yorf hn<;. .■<•*;,(«? n'^<^w*©d' JBijia ix«»tf i)fld sni< ^■?ii« 
■x..„ .?^...,. .... ,v,:..-. .:....... :--.^:v,J ■-5.^-.'.. v-'r'- .fejBxl isff^ffil arts' ait^a aif 

a/:,, v.. ..oiloiq saojHdXw oriT ♦Yx^loXtefisd' ... .v,-i....ijd:o ei:!^ lot aoit&oiliCs^A 

•-.-'.. .'-rteii^cf aX 9gnjad« acl;? aaiiw ©aitlo Qsaorf &dt ot xjl ;fX Iwxas o^ x^XXoq 

:;©i9vXX9X> aii aoXliO emoti mit sro^.% tnutB-x Siil noqu hiu& ,t&aa aaw 

;3^a ^XsvXiTisoq ©H ♦^X lol i-qXoosi aXii ^'03 Suim fea^usnX arid' c^ it 

;.*• ftoX^jOBJCio kX aUsoffii'^^sS ,iM j&evTiee aii aaxJw aoXajsooo x^eve no {f^ili)- 

.fn9stntq tlBBaM baz ±as.om%sP. .^' ' 
\9 xillXoal A .becXB^noo ri.,...-.:.j.>jq iuatXIoq^^rriraii arid- lo itosS 
do.v5« to Q&6 9ooiq ail^f lo cfrsear^sq Jba,': Xioiitfu-a ii©Xi£w ^aeojsXo ^na«ix-»Q 

?»r{* '<;c[ jts^vo-fqeXX* «i XXXfif orf^ i:X £>ajj©XX« bu^tt 9ii! i&tii blod aW 
.atlXcfniaXq Q£ii ^0 tXariaci nX a<^XY.1Xira©;f ,aaeaeaiJ-Xw a8axJ;f to ©onabXT© 
ttJLiixl^ilq 9iitf no aX a^biu^ 9iii ^Mii it"iB.^n«i5ieX9 taetuoo to xstl »l 
bVT.'r.e .titfoo ©rlJf *':id* awoXXol *X &n« ^tl aro'iq o;f Jbi/jsi^: aasaXXA «d« 



6. 

in finding that plaintiff's Mil had been sustained and In ordering 
distribution of the proceeds of these po3.ici©s to be made to the 
executor, schiavone v« Ashtoa , 332 111. 484; Mew lork Life Ins. Go . v, 
Andrews ^ 167 111. App. 182, 

The decree will be reversed and the cause remanded with directions 
to dismiss the complaint, to distribute the proceeds of these insurance 
policies to Jean Jawor under the respective bills of interpleader 
filed by the insurance companies, and to tax costs against the 
complainants in conformity with the views her-eln expressed, 

REVERSED AND REMAI>IDED WITH DIRECTIONS. 
O'Connor, P« J., and Nlemeyer, J., concur. 



•'^ « oo »8gl '^'^•^'i gftoy weB ;<^3^ .HI S'^-f- t«£££M .v suo -v&Jjio^ .'loJuoax© 

.SSX .qqii .III ?6X t gy&rL&xiA 

letqx© /tl9':i«il 8'iV«Jhr Hilt xitlw xt iMnotixoo al &^n»at3lqa&o 






42358 



320I.A.341 





) 

JOSEPH WAGNSR, doing business as ) 
WA(aiER DAIRY PRODUCTS, ) 

ApDellant, j^' 

^'^) APPEiO. FROM 

▼• ^ ) 

^^^'" ) 8UPSHI0R COURT, 

MILK WAGON DRIYERS' ®ii<:ajaiQGA|4 ) 
753, et al,, ... ^ ^''''"^'^^''"''f^-^-^-'-^'^^r^iQ^ 

^^'-" Appellees. ) 

^ ) 

./ ) 



MH, JUSTICE NIEMEYER DELIVERED TflE OPINION OF THS COURT. 



Plaintiff appeals from a decree reforming a contract with 
defendant vmlon as to the date it became effective, directing an 
accounting as to wages and commissions due six union employees of 
plaintiff and denying an injunction restraining the picketing of 
stores purchasing dairy products from plaintiff. 

Plaintiff buys milk from farmers and producers and sells much 
of his product through drivers to stores and milk stations, who resell 
to consumers who call for their purchase s. The defendants are the 
Milk Wagon Drl-wers" Union and certain officers, individually and as 
representatives of the membe: a of the union. No employee whose wages 
and commissions are Involved is a party to the suit except as a member 
of the union represented by its Oi fleers* 

Plaintiff and the union entered into a contract about May 1, 
1940, which ejQjired May 1, 1941 pursuant to notice of termination 
given by plaintiff, a second contract purportinr^ to take effect 
May 1, 1941 was prepared and signed by the union and sent to plaintiff 
for signature about August 29, i:41. Plaintiff changed the effective 
da.te of the contract to august 2- , 1941, signed and returned it to 
the union. The itnion refused to acceptvthe contract as changed and 
sent a new contract, effective May 1, 1941, to plaintiff, who did 
not sign and return it. 

Each of these contracts provides that no member of the union 
will be asked to ma.ke any verbal or written contracts which shall 



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"" .THUOO aHT TiO HCIKI'iO 2JIT QSHSVIJaC H3Ya3,13IM aOITSUL .fiM 
dJl-iV' d-oa^;tnoo s -^RlisnolBt ssiaeb xs moil: oXaaqqa Itlial&Jil 

.ftliaialci ffiont aJfoiiI>0'iq ^ilaf) gnlesrioiirq sstod'a 

riouis aXIsB bns, aiooi/feotq i)xis eisfflrial ffloil iSlm atjwcf llXJfLtsIft 

XI98S1 oilw tsnoXJBCfa jLCIbi 6fis aaiotfa ot a'xrvXil) iiswo'xri;t ^oufxyiq oXxl lo 

%sii ens 8^aaI>fl9lG£> axiT •aaa&cio'zjjc itpdii tol XXso oifv aismixsnoo oi 

u& bn& x-^Xj8i;l)XviX>ni ,aT:eoXl*io alu'iiQo boB aoiitrr''*.artsarJfe!ta hosbV iXlM 

aea^w eaodw eaxoXqrae oM .floXmx »di lo a vadfBem axfJ' io aeYXd'^itjosaa^qart 

iQdm.em & %& ^qaoxa SIlb edi oi -^^xsq a ai bevloral eta anolcaXiznoo 6aB 

^aidoXllo a^X x;<^ bB^neae^iqei aoltuj tdS to 

<X ^sM ;fwocf^ tfofitJjKoo 3 o;tfii fia'.red'n® nolnu aii^ beta Ill'Jttl&ri 

aoli&nltmdi lo aoXd-on o& crnisuaiuq X^ex tX \;i»;^ f>a'iXqx8 doldv ^O^Ql 

^ootte 9i«;t OCT gnXurtoqiirq Jojsi^tnoo i)ao9aa A .llX^nXjaXq x^ nevXg 

llX^nXiiXq oJ jJ-nea fins noXxii; aild' ^cf Jbttng-^a bOB i>8'XJBq9rfq asw I^GX ^l "^bJ»1 

aviJoella srfj f>a§ixa£lo Ittial&l'i ,XJ^€'X «es ^fa^sJ^A i'wocfB ^iis^&ts^la lol 

o;t ;tX lieniuoei Jbna J&angXa <X^QX , iSt i^awguA o^ ^ojatd^noo exW lo e^faJi 

basi Bogaario aa i'Ofiitnoo axI^tT^qeoojEi otf l)6eulen noXm; axlT .nolnu 9d$ 

bib Atfw ,'3:li:fflXjiXq o;r ,X^(iX ^X x*ii •^'X^Toalia »;tofii;rnoo wen b J-nta 

nolasj exJa- lo •xacfmea on t-ariS aeftlvoiq ad-osiJaoo eaeiitf lo rlo^a 
XXbtIb xioldv BioBiStiOO aa^^Xrcw io XAcf^xoy yas 9i&u oi t«JUi« acf IXXw 



2. "i 

conflict with the contracts between the plaintiff and the union, 
that all existing agreements in conflict with s id contracts are 
null and void and that in event of a dispute as to commissions and 
wages the employer agrees to furnish within a reasonable time, reports* 
load sheets and any records applying to wages and coramissiona 
neoessaxsy to determine whether an employee received the wages and 
commissions to which he was entitled* 

The union contending that plaintiff had not paid the \mion scale 
of wages and commissions, plaintiff on August 28, 1941 deposited 
^;4,000 with the union and too a receipt of that date reciting a 
legitimate dispute as to the payment of contract wages, an admission 
by plaintiff that certain moneys were due to his driver employees, an 
agreement between the parties that the ^4,000. Is given to the union 
as part payment of wages due said employees, that the balance is to fee 
payable to the union after an audit to be made by September 5, 1941, and 
that commissions be figured as of July 15, 1941. 

A f^^rther dispute having arisen as to the deposit of an afiditional 
$3,000 demanded by defendants, and plaintiff having refused to make jfhe 
deposit, the union began picketing stores buyi g from plaintiff. 
Plaintiff instituted this suit and in his complaint expressed a desire 
to pay to his employees any sum of money due them^ alleged the picket- 
ing of the stores of his customers by the union and prayed for an 
accounting and for an injimction rest aining picketing. Defend, nts' 
answer, stripped of unnecessary and Irrelevant matter, alleges a 
dispute as to wages and commissions* a deposit by plaintiff of $4,000, 
a partial audit of plaintiff's books from which an estimated amount of 
§7,800 due employees was arrived at, the arbitrary refusal of plaintiff 
to permit coBpletion of the audit, his refusal to produce the necessary 
books and to cooperate in the investigation, the refusal of plaintiff 
to deposit an additional $3,000, the resumption of picketing, and 
denies any thi»eats, intimidation or violence in connection with the 
picketing. 



^a^:>lms erf* boR l^lial&Lq wii fi»#w3-©cf e;fo>n#A6i> mxit dttm tolltnoi 

i?f?e Biiolsel'SKOO o^ aa »^«qpal* a to #n*v9 ni i"Ad* f>n£ filer bnr; Iliri 
uJCSOiasicEiOO fifta aiv. « ^ - .ios«^ "tas Jbxtt stoe^ J6.6O. 

.osIJl:!'. ox-l doldv od" ariolaalaK©' 

i>«*i«oqel) I^ei ^^S ^BWgaA no ttitnlizlq ^aflolaclf^uoo baa atSAw 1 
3 ^oi.^loe'X 9iM-b .L-^il? "io itclooo-i o ootf Bfcs nc^jiw ariJ jld'iw 000,* 

.X4>(;X «5X ^.Cl'L 10 SB £9^i2^t 9ti aii&Xa»Xanii# #«tf 
XsnOJlPifii(&A ijs ^0 ttiaoqei ©xi^ o;t sa tw^j-.t^ -galViUi •tircr«XJ& nari^^in A 
A,-?':t <» ■ j.« o;t MO,-tTi:?5i gnivari itttnl^Lq boii xKioMimtflL^ ^cf JE»«£>ii«a»£ 000 ^t 

,__.: .__.^ ffloit s X^w^ fisnoiB -^^tUtQAotci aw^acf ncira/ »ii^ ^^Xaaqa 

6*tt&9b ii b9iii\Bn:^tt tntsilqaioa bM at bcm Hub aldA betttilianl ttlimlBl 

-s^-loSiq 9di jb'fi^si.r^ ^ai9di ©«A ^&cob! to own xojt aaa^oXqnia alH o* VMl o 

rLS tox i;. ,-^ _ ii6 ciohitf 3£ii xfi »*i£©»o*BU{» aifi lo aatoiB act* 10 9a 

<sd^n .Bustea ,a«i;fa^oxq s^i^-^'i ^^9'* ito2^om;(,i?i na lot iwia ^l;tiwooa 

:i ae'^sllji ^isfjJjaffl ;^njiTaX©*!Mi fen** "^c^j^ieseositcaj lo b9q4,l^s (lawal 

^ .)C,*| to ttld^nlsiq Tjcf ;fXaoqad « ^anolasltasoo 6xin aa^w o^ ba •Sac^l 

to itfUJOtOA l)9;t£e:ld'Ba ob doSsim KOtt a^oocT a * tli;^ iLLsIq to Sibua IfU^i&q 

ttltfnlsXq to Icawtei xis^^i*^*^^ ®^* **^ fiaTi-t^a ajsw aa«tc-tq»e «>wJ& 003,? 

vTis^^eaoen ar{;f aoj;;JbO'xq o^ X.«tai/t{n el^ t^-^^*'^ ^^ to aoiitaXqitco ;tlorxaq 

it2;ffii.^Xq to Xfiaiftst ed^ tAoX^d^X^savnl eh.i al ad'B^eqcoo ot fiofi ajfoa 

bn& ^'^Rii^otq to noi;tqa(u;s9'x «ii;l ,000^e^ XiUroiilJU^fiA na tiaoqoJ^ a 



3. 1 

Defendants also filed a counterclaim alleging that the contract 
of May 1, 1940 remained in force and effect until August 29, 1941, 
when another contract was entered into v^jhieh is still in force; 
that plaintiff violated the contracts and has cheated and defrauded 
his drivers out of approximately $40,000. Defendants prayed for an 
injunction, not now involved herein, and for an accoiinting as to the 
sum or sums of money due to the employees. Plaintiff in his answer 
to the ooxinterclaim again asserted his readiness to pay his employees 
any sum due them ano safts that in his complaint he asked for said 
accounting and stands ready and willing to comply with the prayer of his 
complaint and has no objection to an accounting being taken, and that 
any money owing should be paid out of the $4,000 deposited with the 
union. 

After Haggerty, the secretary-treasurer of the imion, h..:d 
testified that the union had not accepted the contract signed by 
plaintiff and dated August 29, 1941, plaintiff amended his complaint 
and his answer to the counterclaim by alleging that the union did 
not accept the last mentioned contract and that no contract between 
pl.aintiff and the union was in effect after May 1, 1941« Plaintiff 
also amended his complaint by alleging that in January 1941 the union 
contended that certain moneys were due and owing by the plaintiff; that 
plaintiff paid ^718 upon agreement that all claims of the union would be 
satisfied by the payment of that aun* Althou^ ruled to answer the 
complaint as amended inetanter, no further pleadings wez<e filed by 
defendants. 

On appeal plaintiff contends that the court erred in denying 
an injunction and in ref rraing the contract of August 29, 1941; that 
there was no contract with the union for the year 1941; that the 
union cannot sue on behalf of its members; that the employees named 
are not members of the union; that the employees were hired at an 
figreed price and vovkje6. without objection and cannot claim additional 
compensation; that by payment of 0718 in January 1941, plaintiff 
settled all claims of th: union existing at that time, that the 



;€>oiol ill llliSi ai xislri. ©:?ni b9ne:iaia s^vf ;to.B Jnoo isff^tons nsxlw 
bBbtfi&^'i^b brm JbocTserio ©Bif Aaa Rd-oBilnoo arf* f)©j*/)Iolv lUtd-jUUXq *aiW 

Si'..; ©d^ aj8-8fli::tmxooojB ns lol J&mi ^nlf*'i»ii Bdvlovnl wen i'ojr ,noli'orii/tnJt 

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•fi^iift.bn9ta£ 

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na iA bettd oism aao^oXqina ©riJ t&di jfloXnu 9d:i to Biedamm *oa 9ia 

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4. 1 

master mlsconstrueA the issues before hisiy admitted inoom etent and 
Irrelevant testimony and made findings not involved on the reference 
to him, and that his fees are exorbitant. 

The record shows conclusively and the parties agree that there 
was a controversy as to whether or not the six men named had received 
the union scale of wages and commissions; that plaintiff deposited 
with the union §4,000 to be used in paying such sums as might be found 
due; that after a tlal audit covciring a period from January 1 through 
July 15, 1941 the union demanded the deposit of $3,000 additional, and 
upon plaintiff's refusal commenced to picket stoics buying from plaintiff. 
These pickets serried banners bearing the legend that the store picketed 
sells dairy products processed by plaintiff, who is unfair to the union. 
There is no evidence of any threats, except to picket during the 
controvex'sy with plaintiff so long as the store buys his products, and 
no evidence of any intimidation or violence. The picketing was l&Mtvl 
and the injunction was properly denied, E'llingsen v. ,ilk 'ffagon Drivers' 
Union , 377 111. V6; Lawrence Ave. Bldg. Corp . v. Van Heck , 377 111. 37. 

The decree reformed the contract with the union signed by plaintiff 
August 29, 1941 by changing the effective date from the date of plain tif ft 
signature to May 1, 1941, There is neither allegation nor proof to 
support this part of the decree. In the answer to the complaint and in 
the counterclaim defendants alleged that the contract of May 1, 1940 
continued in effect until August 29, 1941, when another contract which 
is still in effect was entered into. The answer and counterclaim 
were sworn to by Hagfcerty, secretary-treasurer, and never amended. The 
evidence shows without contradiction that plaintiff terminated the first 
contract May 1, 1941 by notice pursuant to the contract. Haggerty then 
testified that the second contract was not accepted by the union 
because its affective date had been changed without the union's 
consent; that a new contract effective May 1, 1941 was sent to plaintiff 
for execution but that plaintiff did not sign and return it. He 
claims that Jirs. Pomey, a daughter of plaintiff, told him that the 
change was made without authority by Mx'S. Braden, another daughter 
of plaintiff f Mrs. Pomey denies making this statement. But if vve 



' .1 

JE^evisos'i -^vii bO'var: a»B xix*. 9^ii Son to nedt^dw od" 3£ xs*^ sveitf^a^o b »*i 
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9H .;fi xnjj;ra'i £uia xj^ia ion bib Ili^ni^Xq ijidi tud noi^woaxa no' 

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•a tl ^tffi .^BMaatAtn altftf ^nMffinr aiiinA& ya«a<7 .itTir ji^^h^MfE^r ' 



5. ^ 

accept the testimony of H&ggerty, thei^ is nothing in the record to 
warrant the assiimption that Mrs. Pomey had greater autliority than her 
I •later to bind her father. The record faile to show the mutual mistake / 
i Hi stake on one side and fraud on the ro ther whloh Is the basis of equity 
Jurisdiction for the refor©&.tion of written ineti-uiaentg. Karley v. 
ttagnolla Peti^levua Co .» 378 111, 19, B^urtheraor©, H&ggerty'a teBtlmony» 
contradicted by his ewora atatemente In the answer and eounterolalm 
and by the testljsony of ilrs. Pomey, is not evidence of that clear and 
convincing ©haxaoter required before equity will grant such relief, 
Rttf fner v. McConnel , 17 Hi, 212; 45 Aa Jur., Reformation of 
InstruBients, 8ee« 117, 

Plaintiff by amendment to his pleadings adopted the no3iacc;ept- 
anee of the contract of August 2i>, 1941 by th« union. This leaves the 
rights of the parties on the accounting to be determined by the 
contract of May 1, 1940 and the agreement made when the $4,000 was 
deposited with the union. Under these iigreements the accounting should 
be restricted to the time worked by each of the laen from May 1, 1940 
to July 16, 1941, and the union scale of vvages and eomffllissiona during 
that period should oe the standard of compensation. 

Plaintiff started t is litigation; he chose the form of action 
and designated the defendants thereto; he alleges in the complaint 
thiit each of the six eaployees named is a aember of the union; in 
•Bsverlng the eouBterclaim he admits that these men were members of the 
union but claims to be uninforraed as to whether or not they were 
then in good standing. The complaint and answer to the counterclaim 
are based upon the theory that the men are union men, entitled to 
union wages and commissions, and that since August 1941 plaintiff 
"has been endeavoring to ascertain whether or not a mistake has been 
made and whether or not he is Indebted to any of his employees or 
former employees," Plaintiff named the union and its officers as 
defendants, omitting the employees whose oompensatioa Is involved, 
and when the counterdalx was filed assented to the accounting 
prayed for without questioning the capacity or authority of the 



^ .a 



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1 

6. 

union to sue. In Franklin Union v. The People , 220 111, 355, the 
court had under consideration the question of the right of a voluntary 
association made up^of various printing firms to bring an action, 
and (p, 564) s£.id: "The want of capacity to file a hill in chancery 
by an unincorporated body - a voluntary association - must be taken 
advantage of by dcmuri-^r if the lack of capacity to sue appears upon 
the face of the bill, and if it does not appear upon the face of the 
bill the question must be raised by plea, otherwise the want of 
capacity of such asf-.ociation to sue will be waived and the question 
of its capacity to sue cannot be raised in this court upon appeal 
for the firstvtime, •» Furthermore, plaintiff having brought suit 
against the union and its officers for an accounting as to the sxims, 
if any, owed the employees, is now estopped to deny the capacity or 
authority of the union to proceed with the accounting for the benefit 
of its members, seven Lakes R« Co , v. New Loveland & Q, I. & L. go ,, 
40 Colo. 382, 390-1; Fisher v. Shropshire , 147 u, s. 133, 145. The 
same principle estops plaintiff from now raising the question of the 
membership of said employees in the union and their rights to recover 
the difference, if any, between the union scale and the amounts 
actually paid the men. As heretofore stated, plaintiff's pleadings 
admit the membership of the employees in the union. The complaint 
charges that the deposit of the f4,000 was made in con^liance with 
an agreement whereby the amounts, if any, owing toothe employees 
were to be ascertained or reckoned according to the schedule of wages 
set forth in the contract of the union for occupations siniilar to those 
of the six employees. Plaintiff cannot now change his position. 

By amendment to the complaint plaintiff claimed that by the 
payment of $718 in January 1941 he settled all claims of the union 
existing at that time. The decree finds that tiie payment of that sum 
was not ija adjustment of the amoxmt due from plaintiff to the employees 
under the union contract. The record supports the finding. There is 
nothing to indicate fnat the alleged failure of plaintiff to pay the 
milon scale was considered by any of the parties at that time. The 



.3 

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3£fT .©izlu tjsidi im 99litAq arf* lo xnB x^ -^a'cy >sw aXxtoa noi/uf 



union was ©"bjecting that olalntiff was employing non-union men or 
imion men In arrears In dues and assessments, and the witnesses for 
defendants and plaintiff testified th&t the money was paid for union 
initiation fees, dues and assessments of plaintiff's employees. It 
was applied for that pxarpose, Haggerty, the secretary-treasurer, 
testified without contradiction that during the August 1941 negotiations 
Mrs. Braden said that she wanted to set off the money advanced for 
initiation fees, dues and assessments against any money due the men, 
and that he, Haggerty, said they were in agreement on allowing that. 

The lastqpolnt for consideration is plaintiff's objection that 
the master received evidence relating to and made findings as to 
irrelevant and immaterial matters and that his fees are exorbitant. 
Plaintiff sought an injunction and an acco\intlng. The right to the 
injunction was contested. Defendant by counterclaim sought an account- 
ing as te the same subject matter involved in the complaint and 
plaintiff concurred in the prayer of defendants. The parties agreeing 
that an accounting be had, plaintiff rightly contends that the 
established practice limited the issue on the accountjmg before the 
master to a determination of the basis of an account. Ligare v. Peacock, 
109 111, 94, 97; Rhodes v. Ashurst, 176 111. 351, 553, The master 
recognized thi senile in fnat he did not attempt to state an accoiint, 
HoweTef,he admitted evidence and made findings as to a former ohaneery 
suit by plaintiff and one of his customers against the defendcnts, as to 
plaintiff's alleged coercion of the employees whose compensation Is 
involved herein and subornation of perjury of said employees as 
witnesses in the former proceeding, and as to the alleged insxifficiency 
and inaccuracy of plaintiff's books and records as to wages and 
coram! ssions. Plaintiff insists this was Improper, 

May 3, 1941, immediately after the termination of the 1940 
contract between plaintiff and the union, plaintiff and one of his 
CUB omers filed a complaint against the defendants herein, seeking an 
injunction against picketing. A hearing was had on reference to a 
master and the injunction was denied and the complaint dismissed by the 



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i9i&&si ai£r ♦535 ti5£ .i^~ ^ ": tMsii^M '"^ «9X>oiig ;Ve 4^ ,1X1 eox 

,dTaxooo*5 na 9i&iB o^ ^'qaiaJo;; icr^ xiXX) e£i i£^^ aX aXirxoaXrfS ^dsXagosd? 

Y'iS^naxio i9eraot & o^ ba asaXijaXt sbmi baa ootiebtvs tatJXmlws a/ft^lWl^lfi^ 

ccT r>n tsJn ;&n9t9X> 9ii» oexU^sb ai9E©*8i/o aXd to sno &aa ttXtfaXaXq ^cf tltm 

eX aoXa^Baaoqiso?! eeoxfw 89«loXq0« ariJ to acXon«oo bv^tlla a^ttXi'flXaXq 

83 a©6-^oXqJB9 SXisa to x'^t^tT-SQ "io aoXJjsjnodwB Xjos aXaiarf JiavIovnX 

■^onsioXttuacX I>«B»XXfi adi" oi as Bus tScXX)9S0o*iq i^firrot 9di nX soaaaa^t'Xv 

j&nj6 aasav oi bjs aX)"i©odT: BiJta aic. ' .**flX^Xq to -^OBrtwaoBni fiOB 

.leqoiqjaX bjrw aXciif aoaxeni ttXi^iilsX^ ,afloXaaXaDD©o 

OA-QX eriJ to aoX3^aaXim»d' erirf^ i9its xl»i&ib9aml ,XJ^GX ,S "^bjs 

sXci to, vixo ^aja ttXJaXjiXq tnoXai/ oxltf £»iXB ttXinXjalq a»9w;f«tf ^osi^aoo 

a& -gaMo^st ^alBi^ii B>fa^:^a«t9.& 9di i^eaX^siSJa jtaX&Xqaoo a l>eXXt aiMto'eifo 

H o:I oonoiatsi ao Jb&ii s^w saX^. ' .^aX^SJfoXq SaaXjasA noXtont/taX 

asii Xd j39&silmQlb ^aXaXquoo orli baa b^laoD ai»« aoXiotiulal 9di tua is^siUR 



1 

8. 

Gourt shortly 'befoire the negotiations between plaintiff and the im on, 

resulting in the deposit of the $4,000 on August 28, 1941, The present 

aotion is based entirely on matters arising subsequent to the 

dismissal of the former proceedings. The former proceeding is not 

evidence of any question involved in the present action. Nevertheless 

the master received in evidence certified copies ©f the pleadings, 

the master's report and the decree, and makes findings as to the 

various steps in the former proceedings. He also r^ celved evidence as 

to the alleged suborning by an agent of plaintiff of certain employees 

to testify falselynln the former proceeding, and in effect finds 

plaintiff's agent guilty of ^subornation of perjury. This evidence 

and finding is without relevancy and materiality in the present state 

of this suit. They can only become competent on the stating of the 

account if the employees testify to compensation received and an 

attempt is made to impeach them by their former testimony. The 

injection of this issue into the case besmirches an agent of the 

plaintiff through the testimony of confessed perjurers when the agent, 

not being a party to the action, was without opportunity to defend 

himself. In {justice to this agent it must be stated that tne record 

shows he was acquitted of the offense on a trial in the Criminal courts 

Furthermore, the master received much evidence for the purpose 

of showing, and made findings, that the boo s and records of plaintiff 

were inaccurate and insufficient to show the compensation due 

the 
plaintiff's employees. These aiatters, like/ftlleged influencing of 

the employee witnesses, were plainiy matters for the consideration 

and determination of the master to whom the cause was to be thereafter 

referred to state the account, and their inclusion in the master's 

report and the decree are improper. Having received this evidence, 

material only on the taking of the account, the account could have been 

concluded with little additional evidence and a gl*eat saving of aosts 

and time to both parties. 

The master appends to his report a certificate of services 

and fees, charging |829,05 for taking testimony and $600 for services 



^iiQPS^tq «rfT •X*'<SI ,8S tftX'SB'A no 660,*| ed* iko tfieoqol) wria- at ^rti^Iimoi 

ton »1 ^ai&«f>ocw<j Taarcol arfT ,3Si^i&©»«oiq icffirtol -d;}^ lo XBaaJbjiaJLb 
■ cSlsi ;fi)^T©M «floi;toj3 #r£aB»tq ad* nl twLcrai noltBetrp xos ^c ©oneMvt 

a« #i«ioMv« J6«ri»0'^T o«Xs «K ♦asni£»9»o<nq 'xennol aiid" ni aq»;fa «jQroi«i«y 

3 99X0Xqa!8 «Uts#T:»© ^o TrtftcXfiXq 1© Itxregs fl& x*^ snlmotfua l)9:soXX£ witf' o^ 

BfJHll *<>«lt9 ni 5im ,s«Xi)tftoonq "tcffiiol Mi tslax^ml&l xlttnt^t oi 

eif* Id sfri*j5*it axl;|- no ^natjsqatoo Miteoa' iXao aeo xsd^i ,^Xina aXity !• 

rw isft© J&«wX»o«rt n©/J<ian©qffioo o.t ^rHJas-j aoe^oXqaj* twftf' IX tf-fujooos 

aril? .^iiofflXd'8 9d' learrrOl *tXedtf x<f aftii* do£.eqaxX o* dfcsm sX d^qais^ti+jA 

Off* lo ^rts^a itfi sofioiXraaecf «b^o 3rl;r o*cX tuaaX aXiCJ lo aolto9lnl 

j^s^ldS ©jf •\£*X«i;!f'x6qcro ift'OdcfXw a*. , gnXetf ^on 

Snoo'in- erf* tfjsiC* fe^tBi-g ®cf tstum tt tfno-Jj© aXfid- o* ©oX^Jew* r:I .IXsamXri 

,Jiifoo ls.ttkfs.tto 9dt flX XjbXt* is so wiflstlo arlcf lo ii*3^#Xiipoja 3bw ed evoda 

fw«qr£wq »iti lol soissfcXre ribua J&«Ti©l>9rt locTasBi odd' ,«'xoflr£an';ttx/'5 

ItttstlMlq to afe^oo^-i f)xs« a^^o&tf tif^T :J'Bxid' ,ascXir«X\ s.^jsta fins ({^Xwoffo !• 

9U& flcX*£8fi©qfflOo erii vada ot ^-caXoXlljia ni .oca ^iBivoosal siew 

lo sisXoH^ifXtaX 6^^^XXA\o.Iii.[ 49i©^*&a asedT ,a«9xoXqE9 e'llX^nXfiXq 

HoiS^B*)i©fcX8n©o Bdi t©t BiotJ^Jate TijXiiXaXq »*)£©?? ,a«as9C*Xw ©d^^oXqce 9di 

•^;M:s««i*il;> ai o* asw aexmo *xf;f saoifw o* isJasa 9x£;f lo nol^f^xjXjDrioJaA Ax« 

a*':c9:^eAfi adit al noIsuXoxxl fXaxll Jbna ^^xwoqoa ttft •»^£;^s oit £>9m«tart 

tf>o«9j&Xv© aXcf;t AavXooaT; griXv^K .isqciqaiX eijs aano«fi ayi* X>ne ^loqsnc 

' 9rf evarf *Ifcroo tm/oooa aultf ^fauooo& adi to jiiXilAa' arfJ no ^Xao XaXia^jaai 

ai-ac^ Uo j^aJtyr mj aoKS&Xva X^noX^XJ&d&E aX^JXX rii-X* b9buloaoo 

.saXJ^iaq xi;fO(f oi^ eraX;!" bOA 
asoXvT^a to 9:^60 XI: Xttao s t^oq^t aXxI ot a*aagq* laita^xn erfl 
BOoXv'Taa 10I Oe>©| Saa ^noasXifBei' ■^nhi&i lot 80. -{X^iAito taesl bn& 



9. T 

In determining the issues raised by the pleadings, examination of the 
testimony, preparing f ind ngs of fact and conclusions of law and 
time spent at hearings and arguments, in the aggregate amounting to 
146 j/2 hours. This means 29 days at five hours each. The court 
did not fix the fees of the master hut referred the assessment of the 
costs of the suit, includin ; the master's fees, back to the master 
whose fees \?ere involved to make his findings on the same and report 
them to the court. Technically the question of the proper fees of the 
master is not before us. However, plaintiff argues the question 
without objection, and we have examined it and will express our views 
in the hope that a further appeal on that question will be avoided. 

The factual eontroverales in this case are few and simple. In the 
matter of the picketing and the conduct of the union officials and 
members, concerning which marked conflict in the testimony would 
generally be expected, the record is remarkably free of rdispute. The 
witnesses of the plaintiff did not testify to conduct, threats, 
intimidation or violence which would render the picketing illegal. The 
dispute In the record as to what the pickets or union representatives 
said or did is insignificant. Likewise In respect to the basis of the 
accounting. We have already commented on the question as to whether 
there was a contract between the union and the plaintiff after U&j 1, 
1941, There was one more dispute. Plaintiff argues that the drivers 
were non-commission wholesale men- not commission wholesale route men. 
Officials of the tinion testify that the men are classed as commission 
wholesale route men and describe the work of such men* Plaintiff's 
witnesses testify to the payment of commissions to the men, and the 
audit introduced into evidence by plaintiff shows oominissions duenand 
amounts paid on account of same. Testimony covering more than 2>000 
pages was taken, a great portion of which was given to evidence 
relating to immaterial matters and to exceedingly long cross-examinations. 

The master should have itemized his services. Li twin v, Li twin, 
375 111. 90; Neipp v, Toolen , 313 Ill» App. 28, If the time spent at ; 
hearings and arguments includes time consumed in taking the testimony 



Bdt to #««flre»«M5a£ »rf# Ae-rjcsls^l-iwJ isSbbr srf^ to ae^t ad* xll ^-on Ljtl 

^lAcfsii liiuB ©SBS *rt* HO tgAlfittXl 8^4 bAjmbl ot b97 Loral »iew a9«l ©eodi 

els' to bft©!: taqcHiq sfiiS- lo noijTaei/p ®jrfiJ xJ^^J9«-^«c£o«''I .*iwod eri* o;J maxCi 

x!ol5tQ<9i;p »di attfas-ss tti^-niaXq t^r^YowoH ♦bu siotsd it on ei •s»d'8«i 

affsiv 1JJ0 s8«T»p:» IlJtw l)as ^* ^^sUsmsi^ otacI sBf £>iib iCOifoe^do tuodtt* 

.BaSioVis «d XOw jsoitatup i'J&d* iio Xeeqqja isii^iyl a i££i^ eqoxl srfJ flj 

©dS" ill (.©Xqaia 6mi w©t ©i^ oaao aiiiit cl aelflnovotitno© IcuyJcksl «dT 

srfT ,©3-wgallJfito ©9^1 ■^XefsJl'xaaisi aX j&^oo«« adS" f&»^09<pc© ©<3r x-tXsi9ii»^ 

<s«rse<xr{^ ^ifou&iioo e^Jl^ilf ti^jr |;|)|i &dtfe ttX^iiJtfilq «il;r to asaasxilXi 

adt .XBgeXXX snX^-sa-oXq mH %mhn9t AIwow xioXdw •onaXoXv -xo aol^i&btalitL. 

a0vX#fis;ta»a9«itr9^ aolaa i© a^fajCoiq ©da^ ^fariw ©? aa inoo^'z siii nl etisq^li 

ftdt tc sXa-^cf miit o^ ^soqsei nX »»Xw^X.I •d'/r.aoXtXx^XBflX si f>X& 10 £Xai 

isxCd^aiiw 05" a*: aoliEi^up wli^ iio Ss^fasJitaoo %l)#9*i:X3 &v&d aW .gnXtm/oodj 

tX '^sM i^a^ta ttX^flXsXq ««C3" l)a« ixeXiXja; ^di neevtacf ;foBt;fnoo a bbw ansxl; 

arttviift ad* t-arf* «ai/B^«^ IllttUBll ,9tisq^lb 9nmi e>ae 8«w ©*itdT ,1*6. 

.n»ffl sjfwoi aXsaeXorf'sr aol^almmoti ica -oeai oX^aeXoiiw ixoiaaXiiiiicoo-non a^ei 

JteissXiflffiOC) a^ &9sim»Xp oi^a a^m Bti:} AMi ltX:fae;^ noXm; exld* to aXaXaittl 

a * ttX;^iiXjax? *,rr.9&( a&us to jfrsow a^^ •cfXrcoeab baa oau aitx/cx •XoatloJi 

ori^ bsi& ^nem ed* o^" aaoIaaXBaaroo to 3-nsa^.eq edt ot •^tXd'a©* asaaonJ'ii 

boMi^is^ BCOXaaXJHJisoo aaroda ttXS^jsrXaXq %tf ©onaMva o^al b99ubiyital tlbui 

OOO^S tmcit 9tQa. gaXiQTOo xnoeXJaeT •dai.a to i'raiToocji no i>iBq ataucm 

&oRB&ly^ oi Bjyirl's a^w doisiv to aoX^ioq d'«e<zs ^ ^a9^iMS bow a»s^< 

.aiSoi;ri3.aXiii«x»~8GO«Eo ^aoX ifXgnXfieaox* o* 6a» sfxa^zTjBiB XjjJtnad-AaiBiX oi snld'AXa* 

t flXw;fiJ .T flXw».gJ .aaoXvrtr'a aXri iasXaistf^X avari JiXworia t9tB*ai «jfT 

. *s *a©qa aaXJ exa* tX .8S ,qqA ,XXI 5X5 t ueXooT ,v gqisM 5OG .XXI aVJ 

x;noiE2;tae;f eii^ :g^l2LAi ai l>«iajvanoo emir^ aaJ&iiXdaX Bin^ms^'XA boA B^t^&tt 



1 

10, 

a 

there is/double assessment of costs which is unwarranted, Ifvthe 

charge of 29 days is exclusive of the time spent in taking the 
testimony it is difficult to see how so much time could have been 
spent on the case. It seems that four or five days would be more 
than aatple for a proper consideration of the case, listening to 
arguments, preparing a import, etc, (}ottschalk v. Moyesi 225 111. 94; 
Lltwin V. Litwin, 575 111. 90, Til* fees of the master should he 



adjusted to a reasonable basis and taxed equally against plaintiff and 
defendants, even though defendants have won on the matter of the 
Injunction, because both parties asked for an accounting and defendants 
more than plaintiff are responsible for injecting into the record 
much unnecessary and irrelevant testimony, thereby greatly increasing 
the costs before the master. 

The decree of the Superior court is reversed and the cause 
remanded with directions to proceed in accordance with the views express*! 
in this opinion, 

REVERSED AND REliiANDED WITH DIRECTIONS. 
O'Connor^ P, J,, and Matchett, j,, concur. 



r 






»u^ lo ^^ot'^a/a i«f* ao flow svfiri 1iS'iUi>«eiai) ligcoj*? i£«y« t«.ffi£JbiS9l:»I 

4,noinlqo bMJ iti 



42483 
VIDA BEST, 



Q O A T 

■ A. o 



Appellant, 



T, 



MI&-WEST CONai3^T3^flON Q^QRATIGH, ) 
^,^fpellee, ) 
) 






APPEAL 

StJPERIOR COf^^ 

COOK COUW 



r JUSTICE NIEMEYICR DELIVERED THE OPINION OF THE COURT. 



Plaintiff appeals from a Judgment entered against her 
notwithstanding a verdict for 03,500 in her favor, in an action for 
personal injuries alleged to have been caused by the giving way of 
a part of the pavement on Elston avenue at or near its intersection 
with v/estem avenue and Dive sey boulevard during the time those 
streets were torn up for the repair and improvement of Diveraey boulevard 
by repaving and grading same. 

The Mid-West Conrtruction Corporation, hereafter called defendant, 
was made a party to the action on the filing of the second amended 
complaint, a year after the original com-)laint was filed. The original 
defendant. City of Chicago, and Robert R, Anderson, made defendant 
in the first amended complaint, were dismissed out of the proceeding 
on motion of the plaintiff before the trial resulting in the verdict. 
The complaint charged that Anderson and defendant were engaged in the 
repair and improvement of the street at the scene of the accident 
and were guilty of negligence In causing or permitting the conditions 
allcr;ed to have cetused the injury. Defendant denies any participation 
in or responsibility for the condition, repair or improvement of 
said streets. 

After verdict defendant made a motion for Judgment notwith- 
standing the verdict, which was allowed. The re? sons assigned in 
support of the motion were th ; t there was no evidence that the 
■avhinery and equipment used on the highway improvements were in the 



58A*r* 



iltnallsv a* 



>i 



/ 



vOj: -i 



'Trr-uyoo >sooc; 



\ 



{ 



uoD 3i7T -^o Jsoiiui^o SHT annit-Ti.isa HinHiaSIT! aOIT^UL ,^1 



tail t9nISi-^& b«n9te9 ^a©mj:.6irt a ffio^'i aXaeqqs I'iJtJfnial i 
:6t fitoi;foa ne fil ,T©VBt 'sad fii 00a^C<? io\ ^oXMsr b i^nlboBiBtH ImtoiL 
to Xi3w T4fiJtvi'3 drfl ■v;cf l>«atf.f,o nsocf »v.ad o# Jbs^^^XXa aaintitai; Isneeitif' 
fiol;rs#s'r*!:J'iri etl' ros-sn 10 fsi ean«ra it©*8la co ;fn»M5VJPvq ot.t to t*tao[ M 

veXuocf Y^'tsv-td lo ^nMrevotqtBi fins ilaqai ftdi *iol qsj trsci 9i«w aJsei^r 

f>«6ns>iae Imoooa eri* ^o siillll &£U no noli&x 9iii ot tJiaq b c^ab saw 
X.^KlT^ito srCT .JboIiTt sew ;JriiiiIqiao© I^ni^i-xo oilf:? io;ft.^. Te^x ^ ,;J'nX3iqiioo 

gnx.oaaocxq orf* lo ctwo J&egslsai^ errsw ,^nii:Xqiioo Jb^Jbaeflie itaiX) 9At at 
.tolb'i&v osii nl -gntiLusiBt Xitittf 9di ©rrolted tllJ-nlAXq tdi lo xioiJ^oin no 

tnsblooji 9tii to 9fl«os! 9xl;f ^B i&o^ie 9di lo ^neaevoiq^i baa icl«q»% 

3xiol;^iJbisoo Qflif gxii^^lfflieq 10 gnlau^o ni ©0iis?^;,lX39c to x^^^JJlS eiwi Ana 

ftoi^i3qiol;ftBq xflta 8«iis»J& ;tfisbii9'i«a »XT:«t.jnX 911" J |y«ajtiiBO wre/i oi b9-g9ll» 

"to ^ffisflioroiqfflX 10 ilfxi-^n ^aotitJmoo ©ri;t lot ^*iXid"lBnoq»«n 10 at 

•'ri;tXr;J'Ofj in'^msbul lol aol:}'om s abiEta #n,aP>net«b *oiJ5rt©v •ted'*; 
nX feaiXiX^'P.} 8X10S 91 «riT .JbswoXlA icw rfoXrfw ^tolM97 Biii ^gfUtboBt:^ 
•rfit i'jwl*" «on9l)XV9 on saw arcarid" Jj^rf* ©rt»w noX^tom srfJ to tf*coqqi;r 
9d:} al B^B^ ad-noBevoiqmX xjsw^-1^ eUt ao besu d^noaqXupe Jbos x^^nXxfvsa 



2. 

posse anion or control of defendant or th;t It was engaged in any 
operations in connection with such improve raents, and that the record 
shows without contradiction that the high?vay improvements at the 
place of the accident were made by Mrs. Myrtle Levy, Mrs. Virginia 
Bederman, and their respective husbands, Arthur K. Levy and N, B. 
Bederman, o4-partners doing business as the Md-Jfest Cenjatruction , 
Con:5>any, pursuant to a contract between them and the County of Cook, 
solely on their own behalf and with their Oisn equipment and not as 
agents for or on behalf of defendant. 

Plaintiff does not rely upon any direct evidence to establish 
defendant's connection with the x»epairing and the Improvements, 
PiAintiff oontenda that the machinery and equipment used on the Job 
are shown to be the property of the defendant^ that from the fact of 
ownership arises a presumption that the men operating and handling 
the machinery and equipment vrere the agents and servsmts of defend nt; 
that evidence of ownor6hi|» and the presumptJ^on following require the 
submission of the ease to the Jury; that the partn'rship was merely 
a cloak under which the defendant's business wae; carried on. 

In passing upon a motion for Judgment notwithstanding a verdict 
the court is governed by rules controlling it in packing upon a motion 
for a directed verdict at the close of all the evidence. The court 
cannot weii:h the evidence. It passes upon a matter of law. The 
question is whether, when all the evidence is considered, together 
with all reasonable inferences from it, in its most favorable aspect 
to the party against whom the motion is directed, there is a total 
failure to prove the necessary elements of his case. Nel?:on v. Stutz 
Chicago Factory Branch, 341 111. 387. 

Flahive, a discharged employee of defendant, appearing as 
plaintiff's witness, testified thrt defendant owned the machinery 
used on the Job and that a part of it bore the name of defendant. 
Plaintiff relies entirely upon the presvimption or Inference of agency 
in operation of the machinery arising from the evidence and presumption 
of ownership. In none of the oases cited by plaintiff in support of 



.s 

. 6ii:-^ Y,voj ..: 'isjii-^tk taim.^tfawii fiYl;tooqaen lierliT hoc ,flaBiieA©a 

n -. Jon fin-s iaeaq.'upB mo %it>di jiSivi bcA tlAcitui cr.vc ilmii no xJ^dXoa 

,^n..6fl«l©-& to llsrisd flo 10 'fol »tii«8« 
lellds^fa'Q 03- DOfiariv© iJoa'iil) XJ5U3 ncqp ^Xstjc d'oo a •of) Hi^f-niaisi 

.a^nsajovo'xqffii ©iiii^ l>nB sniiijiqs^ exliJ' dit» aolio&aaon 9*^n&bn»'fb 

dot acW no £»eaw (ffisraqiyp© £>ixij ij'jetciiCo.iia Qci^ iiMt axin^^noo tll^AXAj^ 

lo tout Qcii £10*51 S^jsii* 4**i-r-b««'k^ «^* ^o XJ*^'S6qo'xq axii «d ot fmaefa e«A 

9di ^'xXupon^cU^Qllot noi^qawaaiq esti htm ^lite*xofiwo lo Q0ii&blr9 ^bcW 

^Ist^ffl Gsw qlxlBient'x-aq &di ^-ni^ ^^iJ^t s-^i*' c^ ^^^o »di lo noiasJUBdHl 

,xto ^©it-xAO C.SW ae»Kiawcr a ' d^aiftfijRBli^fe ©aU^ doldv tBbtvj tfaoXo 4 

noIJoH J5 aoqu gotrtS^q ci iJi giJiXI o*i;}-xxoo a 9li/*x i;cf l)«flievos si StuoD aci^ 

itiMOs filT ,»oAsi>i¥s mi LI& to »30,Ifi ad;? tJ^ ^sifiaav i>o;fodiJL6 a «©1 

9df ««aX lo *x«^;^jeMa j& aoqi/ afta3.aq tl ,9oaBblr9 9d^ li^lav 49BimM 

t^dt^'p.oi ^fesioibianoo si eoneiaiv© sydjt XX;^ fxatiw ^tadteiiw aX aoitaauy 

otsqaa oXcf^cvBl t^om taiii nX ,ti jeo^I aeoa^riidlftX aXd^aoase^ XIs dtti 

X •;' .=■: s-xd-oliJ %&9d'0£rsij& &1 noi;Jois ©xiij' morlw teinXiigA x^'xaq «i(sr el 

sJu;^■;;; .V juQ^ilevi .sas© eXfi lo a*c«iB©Xe X'<<»'B'^'®9aa *»-* avoiq o^ anwXlisl 

.VSo ,1X1 XV. ..tfajtyil T^o^.->^'^ o«*tliB 

Ba :g0ii5i«qqB ,d'n£i)JS9'lQi!> lo so-^ola'ad b^^tadoBlk m i^rMAn 

•i£T©nXiiojajn ad* bBtmo ^iUiba9\eb if^iaJ l)0llX;f8D;t ^aoani'Xw . .a'lliS'nXjjXQ 

*iiUibmit9b lo oiB^a ed^ ciocf ^X lo ;H3q a ^^;f J&a? cfot •ri:^ no J^aejj 

^ofi^s^i lo Boneielat 10 noUqeuueeiq AdJ cioqu ■\jX6rtXda« asXXant llX;fnX.«X^ 

0oX*qm;e«'XQ hsi& aoMfeXv© ertt" «?o^l goXaXtJB v-tsraXfllOiMa 9£i) lo noltfis-xaqo ha 

lo ;)-'xoqqim JiX llXd-ffX-aXq i<f b9tiQ «♦««©, Ml* lo .-taofl la .qidcioxiwo 1« 



1 

3. 

laer position did the defendants offer any evidence to rebut the 
presumption. In this case the evidence shows without contradiction 
that the work was being done under a contract ofi'' partnership; that 
Levy and Bederman, members of the partnership and signers of the 
contract, were using the machinerly and eculpaent on the job and that 
all labor on the Job was paid for by the company. The evidence 
overcomes the presumption, which ceases to exist and cannot be con- 
sidered as evidence in passing upon a motion for a directed verdict 
or for Judgment notwithstanding the veroAot. In Lohr v. Bariimann 
Cartage Co ,, 555 111. 355, the court was considering an action in 
which plaintiff was struck and injured by a truck of defendant, who 
admitted that on the day of the accident the driver was its agent, 
but contended and Offered evidence which was undisputed that at the 
time of the accident the driver was not in the course of his 
employment but was on a frolic of his own. In holding that the trial 
court erred in not directing a verdict, the court (p. 340) siiid: 
"V/hlle it is admitted by plaintiff in error that Schwinien on that 
day was its agent and the prestamption exists thatvthe agency having 
been established continues, ( Kavale v. aorton Sal> Co . 329 111. 445,) 
such presumption is not evidence. Presumptions are never indulged 
where established facts exist. They suppl.T the place of facts. When 
evidence is produced which is contrary to the presumption the pre- 
sumption vanishes entirely. ( OsbomP v. Qsbome , 3.:5 111. 229; 1 
Jones' Com. on Evidence, 75. )« To the same effect are Nelson v. 
Stulig Chicago Factory Branch , 341 111. 387; Paulsen v. Cochfield, £78 
111, iVPP. 596; Trugt v. Chicago Motor Club , 276 111. App» 289. As 
this presiimption of agency and operation was a vital link in 
plaintiff's case, and was destroyed by the evidence of defendant, the 
trial court did not err in entering Judgment notwithstanding the 
verdict unless there is evidence to support plaintiff's claim that 
the partnership was merely a cloak under which defendant's business 
was carried on. 

The corporation is an entity separate and distinct from its 



■( 

,1 

■ C't^olb&ntac- .tsr awoilg ©ociaiiiJirs ed* esjso aid?' nl .noJt;f-q«;a©iq 

»i - ^e^ia fciifi qJtfU!is«*'r;sq »ri^ lo siaifBaffl ,ason©f)»fi Sua Vf»4 

■i &n*» ciuj, 9ii* iio *fw«r.te> » Jttfi^s t^saMOiyB «!*■ snlaxJ e-reir ,^i}j»7^ao» 

iv9 eriT .Tj3si®f|i3os> dd.f ^d ^ct ^-Lsq uam tfof, sad' no ♦sotfal II» 

lM»v l)9^o©tll> ^ i&t aoitoB Si ofiqu snisasq ni 9s«»J&iva a^ Jbe^efeia 
imexgi^.'isH «v iriQJ fsl. .^oJ^iav arfd- 8«ii>nis3'ail3'Iwd'ofi iaom^uf, not to 
ai no^^ojs «& ^i-jt^iMafiOo asw sTiwe© arfJ ^dcs ,111 §So , , o5 eTte^iaO 

&l£i to eaouoo au^ tU ^oa b/^a 'xari'sl) 9Sii taeblot^a mi;f to iiKil 
iui^ 3fili)IexI la .mro aikf to oXlptt b att aisw tutT ^tmattoLqa» 

aarxti^iioa t;jri* i«i'i« ai tlliJcJLi^Iq "^cf Botf^lJil)^ al »tx •lirfW" 

•^iiXv-i£i 't" - 'i •I*v».4xld" ac?8ix3 noljf-qmiB*iQ 9d;t £)iia ilaa^is oJl oat x*^ 

{ tS. Jic; .o O ti.55 ceg'-co-';! »y gJjfevtq ) taeunid-fioo Ji«felIcf;iJaa aaecf 

.. ii/ii i8V9n ana arroIitqBawe . ^inablve iton ai noltqsmB9tq ifotia 

-oiq ijici;^ xioJt*qatfssi*cq ed;^ oi^ t^ai^noo ai iloirfw J&aowfio^q al SDnaSira 

X jeaS «IXI 35:S t axnocfaO .▼ »cno<f30) ,x^<^i2ta» usifMlaev noliqmm 

*^ ^'LL^ *^* ^0^11 » OiSiia 9itJ , .3V ,9iJixofiiva no .^oo 'aeaoL 

cjV ^XiXo.i.'idooQ »v irqsXxfi^i ;?a5 .XXI IM, t il^yii&^g yiQ^^ott'^ oatAoXrfo a<tf;tg 

.XXX »?3 t cftap ^o^oM oaitfttoOp .V ^ar^T lOQfl ^iiqUL aXII 

rJ; :.,:Ij: X.'.i''lv .3 a.rjw nox*i^,t©qo bcm Y0ftfi5*« t© noid'cuauaoiq aXtCS' 

mi ^^OAbatl&h to eQa&£}lv9 9*1* ^cf l>»-\{;oi*a»fc a^aw fcna «aax:>o o'lllJfal^iXq 

9ii* saii>jnii*8xl;Jiw;tan ^naasfet;?, anltia^iio at TtQ Son bib Jtuoo X.ein;^ 

tdxlu ffii.>Xo B ♦l:^ictnii5Xq Jtj-soqqtts o^ aona&jfva 3± OTiarid^ aaaXrof ;?oXjyiaT 

:Ofii:a«cf a ' itfUiJiitatafe doXriw aa^isM 2L30X0 a xlo^eta aaw qXilatofct^sq entr 

.no b^tmao asv 
aifX.iiO'xl ;foflXJa li) baa a^srx^qae ^4"Jt^ne na b/. no^^Biocfioo. arfr 



4. 

stiareholders. It 1« therefore separate and distinct from any 
partnership composed of the corporation stockholders. This distinction 
will be disregarded only when it Is necessary to contravene fraud, 
pyegne v. Five Cent Cab Co. » 381 111. 594, There Is no element of 
fraud charged or prov d. 

April 1, 1937, Mrs. i.iyrtle Levy and krs, Virginia Bedeinnan, 
owner'- of all the capital stock of defendant, and their respective 
husbands, (employees and officers of defendant) formed a co-partnership 
under the name of Mid-West Construction Company; hl&y 20, 1937, a 
certificate of Intention to dissolve defendant within a period not 
exceeding two years of that r3ate was filed with the , secretary of state; 
April 38, 1938, the board of directors of defendant declared a 
liquidating dividend to be paid In kind by transferring to the two 
stockholders Jointly, machinery, automobiles, tools and office ei|uipment 
valued at 1539,343.14, and the officers of the corporation were authorized 
and directed to transfer and convey such machinery, etc,, and to 
execute a proper bill of sale. This is the machinery and equipment 
used on the repair and Improvements of the street at the place of 
Injury to plaintiff, July 17, 1938, the contract for Improving by 
paving and grading Diversey boulevard (avenue) from Kimball avenue to 
Logan boulevard, which Included the intersection of Elston avenue. 
Western avenut and Diversey boulevard, and the scene of plaintiff's 
accident, was entered Into between the County of Cook and the Mid- 
West Construction Conmany, the co-partnership mentioned above, 
October 3\, 1938, plaintiff was Injured. February 6, 1939, the 
secretary of state Issued a final certificate of dissolution of the 
defendant, March 18, 1940, defendant was made an additional party 
defendant to this action. 

The partnership was created and the dissolution of the defendant 
began more than 17 months before plaintiff's accident. The proceedings 
for dissolution were neces arlly a matter of public record in the 
office of the secretary of state and the recorder of deeds from May 
1987. After paying or adequately providing for payment of all its 



.Bi.rM'sl: «ft»v««*iioo cJ xrt&^ *- Jfi xi€>£iw x^^o J6o£>i:s3«n8Jt5 adf IIlw 

nri^osqsst •xlada' 6il« ^^ftaJbiu^^lo :> to iootfn Xjstf-iqao •di' XXjb lo :-iwnr« 

. iJ&nstef} erXoaeil) o^ nolrfnaJixi lo ©d'jBoIlXjfts© 

■; '' io tiiQ^oB^ih lo Bisocf fitii ,3eGX t8a XliqA. 

c*cl Drf;t o;t 30X11 ale flisrt* •^cf JbnXi al filaq sd" oJ- J5n961vi/i gclJafjli/pli 

.•ridiaqj//|fie ftul'ilo 6a^ eXootf tSsXXdotioJwjs ,ti»nXfIoiia ^^X^fiXot aisMorlioo^B 

-i>£iT:o£i:S^0s eiQw noi.i»*Eoq»i' io e-isoillo odtf bciB ,*X.e^5^^efi$ ;tii f>8t;X6v 

oj r-)n3 ^. dowa t*^J^c>o ■^'fs^ islaiusiJ ot b&iovs.ib bt» 

tnosiqiifc roGltiGBii . ZM leqoiq a §;fj;/o©xe 

lo ©O-iiv. . fTv^3 Siit \0 aC^ilfiriSYOICiBti bClJi Il&q9t 9dt flO ^SttU 

XCf 8i:!Xvoic(nii lot ;?osi*flO© ^^xid' ^S£i'X ^'^X 'cXwL .llld'iil«Xq oJ xiut,nl 

o^f aifnsvs Ilj^dsiJ: flrcxl (»irfi(9va) BtjureXjEfocf x^aisvKl scXfwa^s. bn£, -^lYAq 

^Bua9r& noi aoliomi^ir.t arf;? fisSx/XonX 4oXdw ^biartluod xi^soj 

a'llX^KifiX' lo ©fisea Bdi ha& ,lnav«Xxfocf i£«ri' grvia Bco ejjnevjR rrie*a»W 

5xft.t ®£i.: diJ ixeowjrea' o;?ni Jfc^ciojfnft ajsw td^nsljlooA 

,®vo<fjB £>«X)!0l;ffieiH qXria-©«d-«i^q~oo erfd- ,i|iifiqBoO 0OX;foi«tf^anoO ^aaW 

odt ,t5M "^S iji,t4itricf«^ .Mii/tiii 8«v llid-nXiiXc ,86eX ,£C i^doioO 

mi$ lo noXd^oXoBcil) lo ©iJ^sollid-Tao Xr^fill a fieifsai ac^A^a lo f^c^s^^^eoa 

■^cfiaq l&aolilbS>A rm tha^s a&w tnaJonalofi tO-^GX i6X rioi>j.M ,;fna£)nelai> 

.noiiJo.:. aitrJ oJ tuibsiet&b 

\ Jn^AneleA arft lo noi;tyXo88lJ& arit fine feeS'iieTO asw qixtetsn^xeq adT 

sSftXiJoeooriq oi(T .J^ttaJbJtoo^i s'^llid'iilxjXq ©■solocf miiin<m VX xxaili" a^ow xiagacf 
I ■ .. ■ , . .■.■-. 

I Biii al briood'x oXXcTtfq lo t^fttm a xlit&:anQ9n atar/ ^ilirXoial^ tol 

i 00^1 9*>9Qb lo laMooat mli fins ei^^d-a lo "^jifi^aaoea arfaf lo aolllo 

at I lia lo ;Jn-^iBxaq tol ^filBXiro-sq xltttzup%ba 10 snX^^q latlA SZ2l 



5. 

obligations, the corporation was obliged to distribute the remainder 
of its assets either in cash or in kind among its shareholders. The 
distribution of the ffia.chinery, etc., could be made only to Mrs. Levy 
and Mrs. Bederman. This distribution became a ssatter of public 
record as part of the final certificate of dissolution Issued by the 
secretary of state and filed by hlai in his office and in the office of 
the recorder of deeds. This distribution was made almost three months 
before the contract for improving Dive sey boulevard was entered into 
and more than six months before the accident to plaintiff. The 
contract with Cook county was also a public record open to any who 
might inquire. The final certificate of dissolution was a matter of 
public record, more than 15 months before any claim was made against 
defendant for plaintiff's injuries. 

NO reason for practicing fraud or, as plaintiff claims, making 
the partnership merely a cloak xuider which defendant's business might 
be carried on, is disclosed by the evidence or suggested by 
plaintiff's argument. By doing business as a partnership Instead of a 
corporation the liabilities of -he partners were Increased, not 
diminished. To the stockholder liabilities of the ladles sas added 
the personal liabilities of the ladies and their husbands. There is 
not the slightest bit of evidence of any fraudulent purpose in the 
orgtBilzatlon or transactions of the partnership, and therefore no 
presumption or Inference as a matter of law of its agency or operation 
on behalf of defendant rendering the latter liable for the acta of the 
members, agents or servants of the partnership. 

The trial court properly granted defendant's motion and entered 
Judgment against the plaintiff notwithstanding the verdict. The 
Judgment of the superior court is affirmed, 

AFFIRMED. 

O'Connor, P. J,, and Matchett, J., concur. 



*9 

olltSssq to i»^iam a%^m0^ noiiiu(!ti:!t9itb Shi's .Jiofirfscos .atM Sua 

■ o eoillo ©dit rsl 6fl» Boitle aid nl aiid tti" b^ltt boM d:fe;ra lo x'xs^rxoAa 

oiiil bsr[9tne sbw ^-KaVdlwocf ^ea ©via sdvoiqui tot ^ofit^neo M(;f ©totMT 

f-'f's^ t«« o^ a«qo Moesi oilcfwq b oaXji bjgw t^nwoo iooO il^lw *0£«3'fl©* 
!•%* floi^wloselfi to e*.aoili^neo Isixlt &d1 ♦ST^lupni Jrigln 

,aeitislai B^ttltalslq tot 1ftijtbtm'i9it 

•gniitisa tsalaXo 111^ni£,lq aa ,10 fiUAit 3£riol;J'ojs'rq not aosA^t ©H 

itxislai e'^ofliawcr & * ^ a&iiRe'l9b daJji^ tubav laole js tXarr»ffl qMBt?^attaq ftdi 

X<i t&^B3rggiJB 'to florisbivs ©rfj" "^d i&«aoIo8if) al ,fio jDalm:*© ©tf 

£ to f;'i^tr>,ni qlriBtsai-x&q & &b sseulajLTd scloA \9. ,taBBa^A a*ttl;^nlfiXq 

t-bssas-^ofil 9^mr etBjr^isq an;t to a®l;fillcf«ll eri* flel^mo<srto« 

fisAM 8B»;:a9t£>i3l ed* to G»liilldel£ \t9bl0rbi oots suit Of ,b%iialttl!alb 

ssi o^ailT .al«iacfawrf ileri^t bn& aeibstl »ii* to aaitfllJtcfell Isatmitq a^ 

ed^ tii ©aoqiWQ ^nslwfifc'&it t«fi to aossJbive to :?ld ^satiisXXa aif* ton 

oa »^otai9d3^ .bXLs ^qhiB'i^ati^q ^& to anoiJojBafiAi:)' rto aottAstt^s^o 

itoli&TBqo 10 ton»jj,'3 a^i to wal to t^itsim a as aan^t^tfll lo nol^qajraatq 

> i5 to 83-03 9dS TOt alcfail t9it»L axi* snXrtsJ&rtat d'joafjnatefc to tlAiiotf ao 

,qlii8''idfl^TJ&<]; aii;^ to Mtnatnm to a^oa^g;! iat»tflB«a 

adT .^oionsv Bdi '^al2itL::'i9A:i±vton ttit/ti.elq axltf' ^aJLU^a ifcaoviirt 

.£>9initla al tiuoo toliaqua a£f;f to tnaasAirt 



42564 



^ 



/ 



\ V f 



/^ 



r 



/. 



THE PEOPLE OF Ttffi STAQ^'tF ILLINOIS, ) i i 

Def ftudar^t" In Error, ) ij--'' 

) ERROH TO I 





FRA.KTCISCO CHAJ^Z, 

Tlalntlff Iri^^ijrror. 




MUNICIPAL COURT, 
OF CHICAGO. 



MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COU 




October 22, 1942, by leave of court, an Information was filed 
charging that defendant on October 20,-,-l&42(, assaulted Refugio 
Villanueva with a loiife contrary to the statute. On the same day 
defendant was arraigned and pleaded not guilty. The Judgment order 
states: "Defendant waives Jury trial. " The case was then heard 
before the court without a jury, witnesses were examined, the coU'^'t 
found defendant guilty of the "criminal offense of willful and 
malicious assault with a deadly weapon** as charged in the info-matlon 
and he was sentenced to the House of Correction for a terfa of two 
months. He prosecutes this writ of error. 

The information v/as on a printed, blank form which charged 

defendant on *'to«wit, on the day of A, D. 193 . •• 

The blank spaces -^ere filled by writing "20" and "Oct.' and after the 
figures "193 •^6,?% typewritten the figures "42" and (defendant contends 
that this charged the offense to have occurred on tAe 20th of October, 
19342, which was a wrong or impossible year, and therefore the 
information is insufficient to sustain the conviction. We think there 
is no merit in this contention. It is perfectly obvious that defendant 
was charged with having committed the offense on the 20th of October, 
1942, Moreover, no objection was made by defendant to the information 
m the trial court and such defect as contended forija if any, was waived, 
people V, Perca, 181 111. App. 666* 



>!5^ 



.0-; OIHO 10 



^862* 

«*ioT'iS nJt ^n-^" "'•^''*': 

.V 



,ltoJO0 aOflT "50 



111 n&v aoli&wnot. 



HRT OSHaVUSQ HOHMOO'O [HDITSUt DHIGIB'iil^ .AM 



t. ....... 10 9V£$I xcf t2*€X ,S£ 'lacfoJ-oO 



zoS^ie iaBsn^isl sxfT »xillf'^ ^^^r JbeSsalq i>iie f>»a§i£rrTa asw tfaaJ&fl^^Jb 
\ Sn.BB£i aadt b&v ©a.^o aril .1. it<l" v£it'*t. ua^lsm *xis-fcxi«1:©c* :a©?B*a 
^'yoo »ri:f ^&*>nlaexe o-ieew b9s Q«fitl?/ t'fiwt j3 ^fjodtlff Jttroo aa'JJ" emoted 

o*'^\o prg.t e ict noitooiioD It© »8woH erf* od" l3»on€»*n»9 asw od bti& 

'-„^ '^' - •- - lo %Bi. ,____ arft ao tzMwwo;^ no :^^:s^fi»l«A 

»r(^ s'xol©'!*^* j3f3a ,iJS9\ altflEveoqml n© snortw £ saiw riolrfw |Sr^€6I 

i-iiaJbualai! ^.arftf Bwoivtfo ^jCJsciTieq ai ;^I .noI#xi»*noo Bldi nl iJtnQa oa ai 

,'i9do:raO lo ri*02 oil J no 5«tjswl>0 ad* i^arf^r tenoo gniv^ri ri^iw bvsi&do a aw 

nol;tBiBiotni axi* oJ- jfii^&c«^sf> Tjd tMa aaw nolrf'oef.cfo on ^lavosioK .S^i^eX 

.&avlBw aaw ,VE8 ^i.t gnol: i)f*.-:>-.-.^,^^ ejB Joe^e^ doue bna ttuoo l&tit otii al 

•ees iqqA .1X1 I8X .aoTeq .v elcroai 



2. 

Defendant further contends that "It was otillgatory upon the 
trial court to oonrprehensively advise the defendant of his right 
to a jury trial as a condition precedent to the defendant waiving 
his right thereto," and in support of this counsel say: "The record 
merely shows that the defendant waived Jury trial* It fails to show 
that the defendant was 'duly advised ©f his right to such jury trial' 
as a condition precedent to his waiving such Jury trial, « 

Since there is no report of the proceedings in the record, what 
the court said to defendant as to his right to a Jury trial and to be 
represented by counsel, does not appear. The record simply shows that 
defehdant waived a Jury trial. In this state of the record it must 
be presumed that the waiver of a trial by Jury was understandingly 
made and that the right of defendant to have a trial by Jury and 
to be represented by counsel was fully explained to him by the 
court, people v, 3lade , 319 111. App* 114 (abst.). 

The Judgment of the Mvinicipal court of Chicago is affirmed. 

JUDG-ilENT AFFIRMED, 
Matchett, J., and Niemeyer, J., concur. 



•rit floqi/ t^o*-'sslIcJo SAW Ifl" itjad^ B&co^t-fiO© 'xeil:?ii*-'i *nBl>ja«^»G 

woila e^f aXiat *I ^ijaJt-xS- x'^^i fie^Jtew *aa5net9fi edit ;fiiii;f awcila '^tXeosa 

©d 03" Smi Ij5i*c* t'^^'t * o-^ ^figi:'!' a-td oil' as ;^nafeft9'i®f» otf bl&e ^iroo •d* 
:farirf^ 8i»e£fe xlt^tSLla M"o«5e*x «riT .•nieqcfS g"on asoJb ^Xsani/oo Y.cf ijeifnse enqei 

8ii;t -^d mid oj iexiljBlqx© xXIwl eaw Xeaaifoo -^d JbOt^cscsiiq©^ ad od^ 
.(.tads) >XX <qqA ^XXI 6X5 .afegJ^g ,▼ sXerosq: ^d-iuo« 
.ASiPsXlta Bi o^ssixfO to ;tiiroa Xsqloim/M «f;* to tf^iieBJsf)!/^ eilT 



320 I.A, 358 



a- 



42601 

ALVINA 30LT0W, as Executrix of the 
Last ',V111 and Testament ©f Anna 
Zlannerman, Deceased, 

Appellant, 



./ 



.^' 



OTTO BAUMOARTH and "^.gBETS BAUMGARTH 



OTTO BAUMGARTH, / 



i^pellee. 



A PEAL PROM 

ilCUNICIPAL COURT I 





MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT. 



January 2, 1931, defendants. Otto Baumgarth sind Elsbeth 
Baumgarth, his wife, executed their demand note for $1150, payable 
to the order of Miss Anna Zimmerman, with interest at 6 per cent per 
anntim. The parties at that time all lived in Chicago and the note 
was made here. Anna Zimmerman afterwards died testate and plaintiff, 
her executrix, brought suit on the note to recover tha balance due 
on the principal of the note, $1,000, with interest thereon at 6 per 
cent per annum from January 2, 1932, Otto Baumgarth was the only one 
S'-rved with process, the wife, Elsbeth having left Chicago In April, 
1931 and resided in Los Angeles, California. The defense set up by otto 
Baumgarth was that the note was not delivered, that there was no 
consideration for it and therefore it was a nullity, and as a further 
defense, the 10 year Statute of Limitations was pleaded. There was a 
trial before the court vvithout a Jury. At tWe close of plaintiff's 
case counsel for defendant stated: " I have no testimony, if the 
Court please. Under the rules, I cannot offer the defendant as a 
witness. The administrator is suing. " The oourt then found in favor 
of defendant, Judgm nt was entered on the finding and plaintiff 
appeals. 



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lOdS* 



( mi^ to xl'i^L'0 9x& Sfi ,||OTJOQ AHiVJA 

{ &naA to ^iimmta&'i! ba£ 1X27/ tBAl 



( 

;0 JA^IOIHUM ( KT: 



ri.r..\ •-:■!■ '•l'^ '2(5 ( 

( 



( .- tHTRA-DMU«S OTTO 



^tlisatnlq boA 9^a>ta,9t b&JJi i&insvTBS'%& fis^najiajli: AaoA ♦eicif «.baa a«« 

Bub Qoaal&<S adt levoooi o;t 9;^oxx 9ni no ^1119 j'xfguo^cf ^xitiuoBxe ted 

nsq a *« aentedt t&9^i6i/nl d-Jltii ^0G0^l^^9foa9dS 19 lAqtaal'iq Bdi ae 

illiqA ol ©B^oMD *l9X so-tVjsJi xi^s^sXS t®^-f» ft*^* ^aaeoo'jcr ri:tiw f)9vif>a 

iO ^cf qir ^m saaslafi ©riT ♦.eiinotlX.eO »8«X«®nA aoJ cl l>e&ls»^ Ana ICGI 

Ofl BAV 9%9di i££i:t ibei^^lleh ioa a&v 9ton exit t&dt aaw d^iJ^flurag 

taxis^ii/l: ja a& baa iX^lllua » nsw ^x tneleiBdi baa tl iqI noi^aiaJManoo 

B SBv^ d^»£iT »liQbB»lq aav siaoli^ilmld "io •iiiiB:3G ib^x OX 9di (danalaA 

a'^llJtajtsXq lo aaoXo 94^ *A •X'Tt^t » tisodtlvi iiiwo 9ri;J otaletf laiii^ 

Bdi tl ^xtiOt&li'Bei on 9V&£i I " :£>a7«;fa d^£Uj>I>it«le& lol Xsanuoo aafio 

» as a^xiabnoleJb axi;^ i^l:!© Joanao I ,eaXAnt aids tebn\J .aaaalq ttuoQ 

tcvs&t al hauot nadi^r ^nuoo 9dT " .^^iina ai 'xo^^.ci^ainia&a axiT .aaaaif J^ 

t'fl.lni .-.rq Jbiui 3flXiirri^ ox{;f rvo hft'Trt.tnR saw ^nmaJ&irt «S^nAba«lox3 !• 

.aXaaqqa 



2, 

Defendant, slsbeth Baiiaigar*h' e deposition was taken by plaintiff 
at Los Angeles, and the substance of her testimony is that she was 
Otto's wife but had been living for the past 11 yers in California. 
That the administratrix, Alvina SPltow, was her sister; that she and 
her husband executed and delivered the note in Chicago; that the payee, 
Anna ziniraerinan, was no relation but a friend whom she had known all her 
life. That after the note was made out, it was delivered to Anna 
Zimmerman; that she and ner husband borrowed money at different times 
from Miss zimnierman who at one time gave them #500 to buy furniture 
while they lived in Chicago and that the money .^as borrovsfed in 
different amounts, for some of which they had given notes. These Siotes 
were all taken up and the note in question v?as given to cover the 
entire amount due. The note shows the following payments made by 
endorsement: §50, February 23, 1931; $50 February 28, 1931; $50 July i, 
1951; and $30 interest on the note paid July 1, 1931, and January 2, 
1932, payment of six months' interest of I3O, she testified this money 
had been given to her by her husband, the defendant, who used to turn 
all oftbis salary over to her to run the household and to pay all the 
bills and she told him she had made the several payments on the notes. 
She also testified as to the handwriting showing the payments endorsed 
on the note, and tnat after she went to California her husb&nd from 
time to time sent her money and went to see her in Los Angeles in 1932, 
1933 and 1936. 

A letter was introduced from hffim to her dated March22l, 19S3, 
when he sent her i|500. The letter is as follows: "Elsie, deposit 
this $500 in a safe bank in your name and use it as you see fit, (Jo to 
a reliable dentist for Leota's teeth, don't take the first one's advice 
if he says her front tooth Is too far gone. Try t© save it. Tend to 
your own teeth and health also. Don't send any money to anyone. I'll 
take care of all these debts. Love Otto." The court properly admitted 
this letter for the purpose of showing the relationship between the 
parties. 



< 



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3, 

E3.sb©th further testified In the deposition on direct examination 
that she had made all the pajnaents shown hy the endorsements on the 
note, in Chicago, but on cross-examination hy counsel for defendant, 
when it was brought to her attention that she had left Chicago in 1931, 
and the last payment was not made until January 2, 193E, she testified 
that the matters were not clear in her mind but that she must have 
Eiade the last payment from Los Angeles by sending the money to the 
payee, Anna zlmaerman, who still lived in Chicago, This is shown by 
the questions and answers. Counsel for defendant asked: "Q, In view 
of the fact that you left the City of Chicago during the month of 
April, 1931, and the notations on the back of the note in question 
purport to show that fifty dollars was paid to iUina Zimnierman on 
July 1, 1931, as we 1 as thirty dollars interest on thexsame date, and 
in addition thereto purport to show that thirty dollars as six months' 
interest was paid on January 2, 1932, would you say that the last 
two payments, which were made on July 1, 1951, and January 2, 1932, 
were made by you from Los Angeles, and were paid by you to Anna 
Zimmerman? A That is the way it must have been, I am sorry I am 
not able to recollect the dates more clearly; it ie so hard to recall 
all these different dates, but I am sure that I left Chicago in 1931," 

Plaintiff called defendant. Otto Baumgarth; he testified on the 
trial and identified the letter he had written his wife March 21, 1933, 
from which we have above quoted. 

The court, in deciding the case said; "Well, I think all of the 
cases hold that a payment made within the ten year period of the 
statute, either an interest payment or ■■.. payment on the principal, 
gives ride to the implication of a new promise on the part of the 
maker to pay the balance. 

"Now, I am afraid the plaintiff has failed to meet the burden 
that is placed upon him to show that this de.cndant, 3aumgarth, either 



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4. 

made the payment or dijeoted someone ele© to make the payment on hie 
behalf. I do not think that the fact that the wife made the payment 
as a matter of fact, I thlni: if he had continued to make any pay- 
ments on tjie note» it would have iieen much easier for him t© make 
them direct, in view of the fact that the owner of the note at that 
timeaand he, himself, were here in Chicago, while the wife was in 
California. 

"It seems to me that ^'^■^ these payments were voluntary acts on the 
part of the wife and camot he construed as being binding upo]^ the 
husband, » 

v^?e think the co rt failed to consider the question whether 
defendant had ratified the payments made. The wife testified that 
she told him that she had made these payments and In these oirciim- 
stances we think it must be held that the payments were ratified by 
him. Goulson v. Hart 2 , 47 111. App. 20; Edwards v. Harder, ?.34 111. 
App. 296; Joseph v. Garter , 514 111, App. 630. 

In the Edwards case the court said: "A partial pajrment on a 
promissory note by one of several makers will not prevent the running 
of the statute of limitations. Kallenbach v. Dickinson, 100 ill. 427; 
Boynton v. Spafford , 162 111. 113; We.ughop v. Bartlett, 165 111. 124. 
But if there is a payment of either principal or interest with the 
knowledge, assent or subsequent ratification of ths surety or Joint 
maker, the r\mning of tne statute is arrested as to both principal 
and interest, " 

The Judgment of the Municipal court is reversed and the cause 
remanded with directions to enter Judgment in favor of plaintiff and 
against defendant. Otto Baumgarth, for $1,000, with interest at 6% 
per annum from January 2, 1932, 

re7Er;-1:;d abd remanded with directions, 

Niemeyer, j., and Matchett, j., concur. 



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^' 




HSIgCUIT gdURT, 




COOK 




42616 

RUTH somisa^j 



PREEPORT W^^R CASUALTY COMPANY, 
.^■-^ Appellant. 



MR, PRESIDING JUSTICE O'CONNOR DELIVERED THE OPINION t OF THE COURT. 

Plaintiff brought an action against the Casualty Company, to 
recover the aiioxmt of a Judgment for |;3,000, court costs and interest 
thereon from September 29, 1939, the date of the Judgment she had 
obtained in a personal injury suit brought by her, by her next friend, 
against Joseph W. Grabowskl, to whom defendant had issued an insurance 
policy. Defendant denied liability on the grotind that it had not 
been notified by the insured, Joseph W. Grabowski, of the pendency 
of the personal injury case brought against him. There was a Jury 
trial, a verdict and Judgment in plaintii • s favor for $3»000 and 
defendant appeals* 

The record discloses that July 13, 1936, defendant issued its 
policy of insurance to Joseph \V. Orabowski in tne usual form, covering 
an automobile owned by &rabowski. February 27, lt'37, while the policy 
was in force, John Grabowski, a brother of Joseph, the insured, was 
driving the automobile as Joseph's agent, and plaintiff Ruth Schikora, 
then 16 years old, was riding in the automobile when there was an 
accident, as a result of which she was injured. On or about July, 
1937, defendant was notified of the accident and of its claimed 
liability, but apparently nothing was done. More than a year afterward, 
August 20, 1938, Ruth schikora, by her next friendji brou^t an action 
against Joseph Grabowski to recover damages for the injuries she 
sustained. A copy of the suiimona issued in that case was attached to 
and made a part of the complaint in the instant case and the return of 



3 * 



-,.4 



8X32^ 






\ ■ ( 

( 

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to inad'ei 9tii bajn a&AO $£Ui;^aiii Add' nl ;^aljaXqmoo 9di to tiAq a •£«« bam 



2. 

the sherJiff shows that he served defendant, Joseph G-rabowskl, on 
August 31, 1938. 

The defendant in that case entered no appearance and September 
29, 1939, more than a year after the action was brought and the summons 
served, he was defaulted, a Jury impaneled to assess the damages, they 
returned a verdict in plaintiff's favor against defendant for 13,000 
and Judgment was entered for that sum. At that time Ruth had become of 
age and she was substituted as plaintiff. After the Judgment was 
entered nothing was done until November 1, 1939, when an execution was 
issued and demand made by the sheriff on Joseph GrabowsM for payment, 
on November 5, 1939. The first part of December, 1939, Joseph Grabowsld. 
sent the execution, together with the bill of costs to the Casualty 
Company. It took the position it was not liable under its policy because 
it liad not been notified, as the policy required, of the pendency of the 
personal injury suit. 

Plaintiff, in her complaint, alleged that after the accident, 
which occurred February 27, 1937^ Joseph Grabowski notified the 
Casiialty Company and it imdertook the investigation and the defense of 
her claim and further alleged on information and belief, that shortly 
after the summons was served on Joseph Grabowski he caused it to be 
delivered to defendant Casualty Company at its office in Oak Park 
and that defendejtit's representative, to whom the summons was delivered, 
promised to defend the personal injury suit. 

Plaintiff's suit was predicated on 111. Rev, Stat. 1935, ch, 73, 
par. 466, ^1, which authorized her to bring the suit direct agaisst the 
Casualty Company. 

At tbo close of the evidence, counsel for defendant submitted 
a special interrogatory by whicji jrhe Jury were akfedd whether Joseph 
Grabowski, either personally or through his agent, had forwarded and 
delivered the summons in the personal injury suitb to the defendant 
Casualty Company which the Jury answered in the affirmative, 

Coxmsel for plaintiff say that counsel for defendant did not 



.s 

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,«i.ua Ttiat^i: i^o»i»q silt f>HSl©fr ot J^alaoncc 
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.■"j/iaqaioD Y^Xatflja; 

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3. 

follow Rule 7 In the preparation of hie brief. There is merit in 
this : aylng. Apparently no attempt was made to follow the provisions 
©f Rule 7, and our work has therefore been greatly increaaed. 

The iole question in the case was whether the summons in the 
personal injury uase had been delivered to the Casualty Company. If it 
had been so delivered within the proper time so that a defense could 
have been interposed in that case and defendnt failed and neglected 
to do so, then the Judgment in this case must be affirmed and there 
is no contention to the contrary. If the summons had not been given to 
defendant then the Judgment cannot stand and plaintiff makes no 
contention to the contrary. 

The instant case went to trial October 19, 1942, and Patrick 
Tomasc, called by plaintiff, testified that he had been employed by 
the insured, Joseph ci»«bow8ki, at the time of the accident and for 
some time thereafter, but was not so employed at the time of the trial. 
That in the early part of September, ai239, he vsrent to the defendant 
Casualty Company's place of business which was at 212 Marion avenue, 
Oak Park, on the second floor - th£.t it might have been in 1938 - and 
spoke to a young aaaan sitting in the office; that he had a summons 
which was given to him by Joseph G-rabowski, and asked the yoxmg woman if 
she would deliver it to ivir, Carr(the manager of the defendant Casualty 
company) and that she walked over to the desk where a man abfeut 28 
years of age was sitting and handed him the summons; that he read it, 
looked up and said: "We wil?^ take care of this." That he noticed 
Mr* ^rabowski's name, at the time, on the piece of paper, which was 
yellowj that he then walked out. That at that time he was employed 
by Mr, G-rabowski to lay asphalt floor tiles and wall tiles and 
lineleum, and ran errands for him. 

On crosB-examination he testified that he worked for G-rabowski 
from 1936 to 1940, at G-rabowski* s place of business at Elmhurst, 
Illinois. That he was working for Grabowskl at the time of the 
accident, which occurred while Mr. G-rabowski 's brother was driving the 
car; th&t the brother also worked about the place in Elmhurst. That 



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boB B9lti ll&v baa s9Xli 'zooXt tX^qsjB "iuX o;^ l}(a«oerAT{> .iM T<'' 

,i«iii -^fot aluiATia OBI £uw tiBuaXexslX 
i3U««r<fi3i{) ^ot i^eat'xow ed ij^Mt &©iti;taed" ©jri noijf^iiijajsxa-aao^o xxO 

(d'^siuiifiiXS t& aeecilBud to aojsXq 8<X2[ewocf«x{) ^a «0;^GX o;^ dCQX aen:t 

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•£f;r ^^iKJtylil) a^v laxi^cxcT a'ii^awoii^'jBsD^ .vM, tX^v Jb&'xrtif090 daiidw ^#i|i^Ktoo« 

;}jaaT .ifaiJuxiJcXS ol ao/Uq «»xi;^ ;rji<'ocfA i^ajfiow oaXa 'xed^oicf ed^ ir&d^ ;<xda 



4, 

he signed a paper In February, 1940, about delive Ing the summonsj 
that he went over the statement with Mr, G-rabowsldL; that in February, 
1940, he was talking to iiir, Grabowsfci who told him that defendant 
said the summons had not been delivered and G-rabowski then asked him 
if he would sign a statement and he said he wo^ld, and did* 

He further testified that on Saturday momint^ in tlie early 
part of September, 1938, GrabowsM met him at his home, 7108 W.Belmont 
avenue, Chicago, that Grabowski came in his automobile as usual and 
took him to the shop to work; that Grabowski lived about 2 miles 
from the witness; that Grabowski 's office was in Elmhurst but 
Grabowski lived in Chicago. That they drove to the Elmhurst office and 
then to oak Park, Grabowski driving the automobile in which the witness 
rode, Tiriat before they started he and Grabowski talked about the 
summons and Grabows'ii asked him if he would deliver the summons because 
at the time Grabowski had injured his back but was able to drive the 
car. That Grabowski asked him if he would deliver the siMi&i.ens to the 
"Freeport Casimlty, Mr, Garr; « that up to that time he did not know 
anything about the suit brought against Grabowski; that he did not 
read the contents of the summons; that up t© that time he had neljer 
heai*d of the Freeport company; that he did not put the summons inb 
his pocket but held it in his hand while they drove from Elmhurst to 
Oak Park, He then described the road tha> they took; that when they 
arrived in fr@nt of defendant's place of business in Oak Park, 
Grabowski sat in the car and the witness walked up one flight of 
stairs to defendant's office. That hh. asked the girl in the office 
if she would give the paper to Mr* Carr. That he had made a written 
statement to one of plaintiff's coxmsel about three wekks ago. The 
written statement was then produced by one of plaintiff's counsel 
and handed to coxinsel for defendant. The witness was then interro- 
gated about the written statement and without going into detail, his 
testimony was very hazy about the whole matter as to when and where 
they had driven, etc., except that he had delivered the paper to the 
youig lady who had in turn handed it to Mr, Carr, But about most of 



* 

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10 ;taOffl ?«©«"« *ire ,i«taG ^iM OJ^ tl k^hiutd mir* nX fiatf ©da "^AbX ^nuox 



5. 

the questions aeked hla he was very uncertain, 

Ethel Mott, called by defendant, testified that she wae tli* 
aecretary of the Freeport Company at its office In Qa.k park and 
wag 80 employed In September, 1938; that she never saw Mr. Tomaso 
until he testified in the instent ease, she denied fomaso's conve id- 
eation and said he never gs,ve her the suminons or other paper and 
that Bhe did not deliver any such paper to ^a?. Carr, who war in chapj^ 
of the office at that time* 

CaPT testified by deposition, taken before the trial, as he was 
about to be taken into the Armed Forces of the United states that he 
was elaims attorney for the oompany in the office in Oak park; that 
he first siet Grabovskl in Jiily,1937, la connection with the accident 
and that he did not hear any more about it imtil December, 1,'J39, when 
grabowski sent the execution to defenoant; that he never le ;rned of any 
suit being brought against arabowskl until Deoeaber 1, 1939; tiiat no 
oummonB was ever handed to him in the personal injury vase and the first 
he kneww of it «aB when the execution was sent to him which he returned 
at pno» to ;i.r, Grabowski by registered mail, 

Lilli&xi OeMasoo, culled by defendant, testified that she was & 
stenographer and secretary to iiir, Crowe, coxuisel for defendant, and 
had been ro eijiployed for 14 years. That on Deceml^r 6, 1;)39, Joseph 
Grabowski earns into their office on Lasalle street, in Chicago, and 
she was called into the office, ohe overheard a conversation between 
i^r. Grabowski and Mr, Crowe - no one else was present - and she took 
the conversation in shorthand, transcribed her notes and broxight them 
back to Mr« Crowe who read the statement to Mr, Grabowski, It was 
then handed to Grabowski and he looked it over and signed itvin her 
presence and in the presence of :ir, Crowe, qIm was then asked: "Now 
what did Mr, Grabowski at that time and place say in your presence 
and in my presence with reference to a suit brou^^t against him by *** 
Ruth schikora 7" This question wae objected ta, and the objection 
was sustained, counsel for defendant stated that he expected to show 
by the witness what took place at the time of the preparajrion and 



Stem iI*SBS .'jaO at eoillo .iaioO f%Q<i9tn% ©ill? lo vtjatfsnodB 

' : ■ sw oc£v t ?M3|fiq jdft«6 V-^ i^vlldi ^ois filB eda tsidt 

.^.'■it *isd!f ta ©onto 9Ai to 

;fflB£>ioo« »£l^ ii;?lw iieidowjno© ai ,'?SGI .^lyi^ fii Ja[««o<f«rrO #«e i^ilt erf 
fi»ilw ,9£ei. . o«a Ii;f? t^axf ;ftea blh 9£l t&dt btssi 

; ;>ir«ii »/■• f , . .5£sju5 iitawodJi'xS 

am^t tJipi&r^ bam Beioa t9id b»dlni>ti&&i.» «&f^iuiJ-)Luda al aoi^Aartternoo eidt 

*''•* -^tf mlrf ^axLte^ja Jil^jifCicT ^Iub a ©tf aoa.=^i ^iw aonoaa^q t^ ^ *«• 

uol;foei;,cfe acf^f boB n4>^ b^io^lfio a^w xsoi^^tiup zldt << ? ^lo^fiifoH tfifoH 

woxle oi beio9f^9 mi fiuii baia^-A isu»baBl9h tol l^aauoo .betdAi^nim qa« 



signing of the statement by Grabowskl In Crowe's office. On objection 
this Kas excluded and the statement read out of the presence of the 
Jury. 

The evidence further shows that at the beginning of the trial, 
and for some time thereafter, Joseph Grabowski was in the office of 
plaintiff's coxmsel. He was also in the court room during the trial 
and out in the hall when the witnesses were excluded, and at the close 
of the day counsel for defendant tried to serve a subpoena on 
Grabowsltl but he had left the city, and apparently had gone to 
Milwaukee and covild not be had. One of plaintiff's counsel was called 
by defendant and testified to this matter - that Grabowski as in their 
office on the morning of the day the trial began; that in the office 
he had a talk with the witness, Tomasco, in the presence of G-rabowskl 
before the beginning of the trial; that i^hen the trial commenced, the 
witnesses, on motion, were excluded, 7e think the evidence of this 
witmess further tends to show that defendant wanted G-rabowskl as a 
witness and there was some doubt at the time as to whether Grabo^/skl 
would also be called by plaintiff. The attorney further testified that 
at the close of the first dc;.y of the trial, he left the court room and 
afterwards talked to Grabowski on the telephone; that Grabowskl called 
him about 6 o'clock in the evening; that he did not inquire where 
Grabowski was at the time; that Grabowski said: "'I understgind there is 
a subpoena out for me; " that Grabowski s,.id he thoiight he would have 
to go to Liilwaukee; that the witness said to him: "I do not propose 
to give y©u any advice, I represent Miss Schlkora. And I am not 
going to suggest to you what to do, but I will go this far with you. ^** 
If you are served with subpoena you had better not go to Milwaukee. * 
I did not suggest to him that if he went td Mllwavikee he would be out 
of the Jurisdiction of the court and could not be served with a 
subpoena. » 

Counsel for defendant "ontend that the verdict is against the 
manifest weight of the evidence and that the court erred in not 
permitting the witness, DeMasco, to testify and to receive in evl- 



.8 

aoltn^ldo no .eolllQ s'ov/o'xD nl iiawodjBiS xd iaestBiAi^i Bdi Itc s^^Ikb-^b 
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^ ritls £>©v"i98 acf Joii Als/oe Axiu Jiwoo 9di to nclJolSalowt, axil to 

" .anaoqcfim 
9dt itanlBj^A ai J'oib'tav axW lAdtf l)^*^^:!©^ tffjkbrxfetaft lot Xaarujoo 

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-Iria sU BTXacf im x^-**s»* o^ tOoaAMaa taaaixJlir ad* aaWJXinaq 



7, 

denoe the written statement signed December 6, 19 9, in the office 
of counsel for defendant, above mentioned. It must be remembered that 
plaintiff, Ruth Schikora, was riding in Joseph Grabowski*s automobile 
which v?as being driven, at the time of the accident, by arabowski'e 
brother, Graboweki paid no attention as to khat became of the case 
except that he claims he had the summons delivered in apt time to the 
Casualty Company, It appears that he first learned what had become of 
the suit against him when he was served with an execution, AJid of 
course there can be no doubt on this record that on December 6, Grabowski 
made the statement in Crowe's office as was sought to be proven by 
defendant. By that document, which was read into the record out of 
the presence of the jury, it appears that after the accident occurred, 
February 27, 1957, he reported it to the Casualty Company; that »I 
never knew any suit was brought against me, I netoer received any 
summons from any court of law and, of course, never having received 
any eummons I never turned any sum/uons or other coiirt papers over to 
the Freeport Motor Casualty Coriipany, If a suit was brought a ainst me 
and Judgment taken I never had any knowledge of it. " This, of course, wae 
directly contrary to plaintiff's evidence, iirtiich was the basis of the 
suit. 

Counsel for plaintiff in their brief say: "The court did not 
err in excluding the evidence of Miss DeMasco offered by defendant 
to show what Grabowskl had said in defendant's office outside of 
the presence of plaintiff, " And the argument is that because plaintiff 
was not present at the time of the alleged conversation in Crowe's 
office, the evidence was properly excluded. There is no merit in 
this contention. The pre ence or absence of plaintiff at the time 
of the conversation in Crowe's office was wholly Immaterial, iJioreover, 
if Grabowskl (who was liable for the Judgment in case the Casualty 
Company was not held liable in the instant case) made the statement 
attributed to him by the witness DeMasco it would be an admission 
against his interest, and the evidence vb-b then admissible under 



ill •lidomoS^WA a « iJiawodfii-D xJqssoL ni gnlM-x bsw ^jsioafMoe xi^uH *lll;tni;ilq 

lo biiA .aoliwooixe «& 4i,iw jbev^iea bj&w ed «Mf* aid ^Bnlagja ^iua «d^ 
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,*ii/a 
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aoia3ijEi£>& n« ad bluov ii oosii^aa asaixtii^ oeiudlii^A 

i9iims fl^lsaelaita ,npcij( «isv sonaibXva sd^ |>|t8 ,|j8 9i»«^al aid vTsni-B^* 



8. 

exceptions to the hearsay rule Vol, 5 r/igmore on Evidence, 3rd Ed. 
§§1420, 1421-1422, The evidence was clearly onot subject to the 
objection made. 

In the state of the record, we think there should be a 
retrial of the case so that G-rabowsltl can be put on the stand. 

The Judgment of the Circuit court of Cook coxinty is reversed 
and the cause remanded, 

RSKKEv^ED AND REMANDED. 
Nlemeyer, J., and Matchett, J., concur. 



exit 0? tfoet<aw3 #ojrj:i"tlT:^sI© 9.3W oons&lv© ©riT .SS^X-XS*! tOsi-Xf^ 



.Gaaj4AJMafi a&iA oaassresH 



^rwonoo ji.*^ |,|f^exio^i3M l>ii& <.L «'X9xeK0iM 



42627 

VITO LUCARELLI, 




DR» R. A. JUTTERS, 

At>pellant. 



) 
) 

1 

) 
) 

t 



9tX0 ij «J Cl 



a;'PE:\l prom 

superior court, 
^^ cook county, 



^^. 





MR. PRESIDING JUSTICE O'CONNOR DELIVERED THE OPIMIOjf OP THE COURT. 



This is a malprattice case brought by plaintiff to recover 
damagf^)^ claimed to have been sustained by him on account of the 
negligent manner in which he was treated by defendant. Dr. '^/inters. 
Kiere was a Jury trial, a verdict and judgment in plaintiff's favor 
for $5,500 and defendant appeals. 

Plaintiff was a patient of defendant, a physician and siirgeon, who 
treated plaintiff for a hernia and shortly thereafter treated one of 
his feet which was troubling him, using an H. G. Fischer l£ meter short 
wave diathermy maciiine. The doctor gave him two treatments. Shortly 
thereafter the foot became aggravated and parts of four toes had to be 
amputated. 

The record discloses that defendant maintained an office in 
downtown Chicago and first saw plaintiff August 6, 1940; that the doctor 
gave him an injection treatment for hernia August 12) 1940, and other 
similar treatments for a short period thereafter. The doctor, called 
by plaintiff under Section 60, of the Civil Practice Act, testified that 
about October 6, the day of the last injection treatment, plaintiff 
complained of trouble withnhis left foot and that the doctor gave him 
some tablets; that he looked at the foot which had the appearance of 
Athlete's foot. This was on October 14. Two days later, plaintiff 
came back, complained of pains in his foot and at that time the doctor 
applied the short wave treatment by using the Fischer machine. He 



\ i Li.j.\j.izuu-..\j\j\.i wij./ 

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( 
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.eXjsaqqA iaabs:t9'i9b bna O0d,d^ nol 

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ni »omo nj& b^nlB^nljssR ttnt^a&leb oXid^ a98oIoall> Mooai odT 
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lerito bttA tOiySI tSl i^aiJ^A &lni«id nol *c««a:fjBei* xiol^oatnl no mtd eTBg 
iellao tiodToof) ©dT .is;M«©ted^ fioliaq Jioda a •rol aJnaasi'fla^if ■zalloia 
y ;f^;t fi9l*il:tae;t ^jfoA ©oicfoBi^ XivlO od* lo ,0© neltose tobms \tlital&lq x<^ 
iLll^nlBlq ^^n9mtB&ti notio^lnl ta&l Bdi "lo \&b edit <6 isdo^oO iuotSa, 
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lllctnlslq ,18*^1 e\afi awT .iMiacfotoo no eaw aldT .tool a'ateldtA 
'Xo:}'oo& odt etsit tadt tB l»rui tool aid nl anlAq lo fianl^Xqeoo ^Jtaacf aoAO 
OH •anldoas ladoaJll ant ;jni3U -^^cf tiiaci^ao-j t 8v«w tioda adt bBlLqqB 



2. 

described how the patient was made ready, and how the machine was 
apolled for a period of 15 minute b; that this was for the purpose of 
increasing circulation. There was a nurse in charge and five days 
later, October 21, defendant treated plaintiff's 5.eft foot again 
by using the machine for the same period of time. The doctor and the 
nurse gave testimony to this effect. Plaintiff could speak little or 
no English and a friend of his, Mrs* caput© went with him to the 
doctor's office where the tw© treatments were given. Their testimony 
is to the effect that duringvone of the treatments the machine was 
a iplied for about half an hour and during the other treatment for about 
an hour and that on each occasion after the machine had been applied 
for some time, plaintiff made loud outcries that the machine was burning 
his foot. The doctor and the nurse denied this and say substantially 
that he made no such complaint and that the machine wag only used 15 
minutes on each occasion, baring bees set by a time clock. The defendant 
further testified that "you cannot bum a person with a 12 meter machine,* 
such as the one used. Shortly after the second treatment there is 
evidence to the effect that the doctor was called on the telephone 
and told that plaintiff's foot was paining him a.nd very sore and 
defendant told plaintiff to get another doctor, that he did not make 
calls but only treated people who came to his office downtown. 

The evidence further shows that about that time (the middle of 
October, 1940) Dr. Scntoro was called by plaintiff to treat his foot. 
The doctor made an examination, foimd the foot was red aid swollen 
and extremely painful to Ihe touch and plaintiff was taken to a 
hospital where he was treated by Dr, Santoro, 

Dr« Santoro, celled by plaintiff, testified in substance that 
after examining the patient's foot he did not diagnose it as having 
been burned and that he did not come to that conclusion until after 
the patient had been sent home from the hospital as having recovered. 
The evidence further shows that about a week after Dr. Ssntoro had 
sent thenpatient home from the hospital, he was called to see him again 



SAW Qaldojm tai^ wod ba& iXaasi oham tMm iaot^&q ad^ vod Jb9di«xoaet5 

Jl to ©aoq-ruq oxiif tot e«w alrfS" iad;^ ;&e;fi/nijn cl to fioiisq a lot J&9JIqq« 

a-^isJ!) svll iin« »aiJ8Xio ixi aatwn. a sbw »isriT .noi^Bli/oiio snieBsrton* 

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eri;}^ 0^ ffiid d^lw ;tn«v d;riiqBD #«aM «aM lo JbixtiTt s fioa xfoll^fla ea 
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tuoda tot tts»ait&9ti i«:i*o adi '^i'wJb Ana tx/oii a& tlMi tuoda lol J^eXIqc jb 
AsiiqqA cdscf £>js£f 8/ii£fo.&ia en^ teitlM aola&ooo do&9 no t^^ ba£ luod tiA 

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fliiiS£ ^-^ o^Q 0^ l>sXX.ao a«w ad «XA;fXqaod ad;r ino^l amod ;faaitaqnad;f d'aoa 



34 

and at that time extracted some of the bones from the ends of four 
of the toes by pulling them out with forceps. 

Before this time the nails of the toes became loose and were 
removed and counsel for defendant say, "This left the soft tissues 
expend from their being rotten, then the bone began to show vip, » 
And tiis doctor 1t«atified that this was the beginning of osteomyelitis, 
"That Is a . death of the bone - the bone putrefies, becomes rotten, 
so to speak, and it acts as a for; ijgn body in it, as an irritant and 
it has to come out," On cross-eEaminationahe testified that there was 
more than one cause of Osteomyelitis; that it could be caused by 
»br\iising, a blow, freezing, chilblains, Buerger's disease, which is 
considered a circulatory affair, hardening of the arteries" and interferes 
with the circulation; that another cauee is due to a burn; that a short 
wave therapy machine of the character used by defendant, Dr. Winters, 
could cause such a bum, that a bum was one of the eommonest conditions 
pf osteomyelitis and that, in his opinion, the bum he found on 
plaintiff's foot "might or could have come from a short wave machine." 

Ihe evidence further shows that while Dr. Santoro did not pretend 
to Imow all about the Fischer machine, such as the one used, yet he had 
some experience with it and he testified it was similar in some respects 
to another machine with which he was familiar. 

Counsel for defendant b^j that "Before a plaintiff can recover 

In a malpractice cage, it must be shown by affirmative evidence, first, 

that defendant was unskilful and negligent, and second, that his want 

of skill and care caused injury to the plaintiff. If either element is 

the 
lacking in/proof, no case is presented f orbthe consideration of a Jury. « 

And in support of this cite a number of authorities, some of which are: 
Wallace v. Yudelson, 244 111, App, 320; Qiander v. Johnson, 258 111. App. 
89; ahlreson v. Walah. 354 I11.40, We think this is a corpect state- 
ment of the law. And counsel contend that there was no proof to 
sustain the verdict and judgment and that the court erred in not grant- 
ing defendant's motion at the conclusion of all the evidence to instruct 



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edi 
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4. 

the Jury to find for defendant. 

We think that whether defendiant :vas unskilful or negligent in 
the treatment of plaintiff's foot, was a question whleh oan be determined 
only hy expert testimony. It is not within the com on knowledge of man, 
as contended for by ooimsel for plaintiff* We are of opinion, however, 
that upon a consideration of all the testimony there was some evidence 
that defendant was unskilful or negligent © defendant's evidence was to 
the contrary. In these circixmstances the question was for the jury. 
This evidence is fovmd In the testimony of Dr. San tore. As abdive 
stated, his testimony is to the effect that in his opinion, the Injury 
to plaintiff's foot resulted from a deep bum which could have been 
caused by the machine used on the foot. In these circumstances there 
was no error in overruling defendant's motion for a directed verdict 
at the close of all the evidence. 

But counsel for defendant further contend that "The hypothetical 
question asked the witness Santoro was misleading in that it did not 
contain all the relative facts which were not in dispute," And in 
support of this coTinsel say that in the hypothetical question 
Dr* Santoro was to assume that the hypothetical patient "felt perfectly 
well before the short wave treatment, other than the hernia; assume 
that he had nothing wrong with his feet, that he had never had any 
disease of any kind" while the evidence showed that plaintiff had com- 
plained of the foot before he received the first treatment by the 
defendant doctor using the machine* It is beyond all controversy that 
plaintiff complained of his foot before he received the treatment. 
Obviously the defendant doctor would not treat the foot if plaintiff had 
n©t been complaining that it was troubling him and it is equally clear 
that the Jury were not in any way midled. 

The Judgment of the superior court of Oook county is affirmed. 

JUDGMENT AFFIRMED. 
Nlemeyer, J., and Matchett, J., concur. 



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v'Ufonoo ««L (^;)'a<io^AM Imia vt» «^^Xd<>i9X>t 



n 



42595 



CHARLES CDTL&l, 



Appellee, 



GUSTAVE VILHELM LI?t0Sru(M and 
HEDVI& ES "i^SLOMJfORDLI, helirs 
at law of John Lind Strom, 
deceased, 

Appellants! 



APPEAL FROM 

CIRCUIT COURT, 
COOK COUNTY, 




''"''*"^'««'>^. 



-'•"=-^**,. 



MR. JUSTICE MATCHETT DELIVEhED THE OPINION OF THE COURT. 



John Lindstrom, bom in Sweden and resident of Cook Coimty, 
Illinois, died at the Kenner Hospital in Chicago, ahout July 23,1941, 
intestate. The petitioner, Cimrlee Cutler, filed a petition in the 
Proba.e Court of C ookbCovinty, claiming his estate, consisting of a 
deposit of S9, 620,14 in the Continental Illinois National Bank oy a 
gift causa mortis, said to have been made about two days before his death, 
At the time of the decision in the probate Court there were no heirs of 
Lindstrom known to be such by the prob&te Court, such heirs afterwards 
appeared and from an order of the probate Court finding the gif J by 
Lindstrom to Cutler to have been as alleged in the petition, appealed 
to the Circuit Cou t, where the matter was heard by stipulation on 
the evidence submitted to the Probate Court and certain exiiibits 
appearing in the record. The cause was heard before jucge Flnnegan, 
no witnesses a|>pearing personally. The finding and Judg^lent again was 
for the petitioner. Cutler, and the heirs prosecute this further appeal. 
The public administrator also became a party to the proceeding. 

The aolevQuestion for decision is whether under the rules of 
law applicable the evidence before the court was sufficient to establish 
the gift, as alleged. While the finding of the court is that the persons 
named are heirs at law of John Lindstrom, the evidence is clear that he 
did not, at the time of his daath, or aU any time recognize them to 
be such. The public administrator was ap.ointed to take charge of his 



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2. 

astate. claimant's petition was filed in the Probate Court of Cook 
county, October 2, 1941, The deceased worked for many years at 
Carson Pirie Scott & company. His account n-umber at the Continental 
Illinois National Bank wad No. 206075. The l(S,st ieposit in it was 
mad« July 2, 1 38, It shows semi-annual credits of interest, A 
record card of the Svvedish covenant Hospital is in evidence, showing 
that the deceased entered tnat hospital on August 7, 1940, and was 
discharged August 14, 1940, This card indicated that he did not belong 
te any church denomination and that he had been in the hospital before 
In 1938, The professional diagnosis was organic heart disease and the 
final diagnosis was organic he^irt disease, chronic myocarditis and 
AtiieMo sclerosis. He gave as reference to the hospital his friend, 
Oaoar Ergang, His bill fop hospital services was paid August 14, 1940, 
Hfts former admlss-on to this hospital was February 3, 1938, He at 
that time gave his residence as 4911 Catalpa Street and named Oscar 
Brgang, with whom he boarded, as a reference. 

February 3, 1941, Lindstrom had enecuted in his own handwriting 
an instrument which described as «My Will". It says: 

"All my belongings to Charles Cutler, 3745 N, 
Wilton Ave., with the provision that a new 
hundred dollar bill shall be given to each 
person whose name aT?T>ears on the card attached 
to this will and who" is still employed at 
Carson Pirie Scott & Co. State and Madison, 
receiving room 12 floor. In addition Nick ^mderst, 
(Jeorgla Earnest and Miss Lampman, shall receive 
one extra hvindred dollar bill each. The tv^o maids 
in the hotel and Bonnie in the restaurant shall also 
receive a hundred dollar bill each. All my wriliings, 
penciled, penned and typewritten and letters together 
with a package in the big bookcase, s all be limnediately 
throvvn into the furnace and burned. Wo money shall be 
expended on my funeral except what is absoluteky neccvosary, 
Febl 3, 1941, John Lindstrto. " 

Attached to this writing are the names of 47 persons* who the 
writer evidently intended should be made the recipients of the gifts 
mentioned* 

May 3, 1941, the deceased executed another writing also in his 
o^jm handwriting which he also described as "My Will", in which he 



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wsfl j5 i.i^t nolaXroTtq ari* rfjfjtw ,,8vA 

tz b')xolme i . y hn& LIlxi pis" 

^rs -JOB Bi&iQ ,oO a» JJooC eini' 

»j3'T9:bnA . j:Slbb& nl »ioclJ 21 rocT -:^ 

9vl»o©'t i'ijBOie «,aaE!qiHfivI a«i.fci bOA ,1, 
aMx-Hi o=i'd- e-^iT .x^oas Hid '131106 5s- 
oeI« Ilexla *n. ■ 9ii;r nJ. ©innoa .bite XeuOii ©aj» itl 

^Ti'pr'f.-^t'w xw I--. . 5" Xlid -^tsIXof) Jb*T:??cix/ri ja avl©?©^ 
' aie.:^J©X £>xiii i!£f»*;rXiwsqY^ ba& .5oan©q ^JbaXir- -■ 
\;X6 I ocf IIb.s tSo'.Dr'cnd ^vtcf ©rid- ni asxri^-rr c : . J. 

.■^laaeooan "^ieitfXoadij ai 3".^;^ -3 Xaiftitirl -^la ^ ». :9epce 

» ,m^'iiBil>nld tsdol, .X^^X |6 ld9'i 

»di odsi tonOBisq ?*> lo aafflsn 9di s^js gnlS-inur BldJi oi bmio&^iA 

ed'll^ ©rijj lo aic»lqlo9^ edi oIj^hi ecf bluoda bstbne^nl xX*x!©f>iv9 lecTi-nr 

4Jb9noj:d'n«a 

Bid al obIa •Qat^lfv 'isd^on& b^iisoQx.9 b9Bs9^9b sui »Xi>eX ,S xb: 

ed xloJUlw joi 4;"XXXW xM" »a bao'Iioesfi ©bX« ari rioXriw gniJioTrtnAd nwo 



3. 

purported to make quite similar disposition of "all his belongings" 
th Cutler. In this he reduced the amount others than Cutler would 
receive from 100 dollars to 20 dollars each. 

The deceased entered the Kenner Hospital in Ghicago, July 1, 
1941, as his entrance card shows, at 2:00 p. m. His home address appears 
as 3022 North Broadway. His attending physician was Dr. Kenner. On 
this card it is stated his religion is Lutheran and that his nearest 
relative or friend was Mr. Cutler, "friend". 

The testimony as to the gift was given toy Ludwig Hertz, by 

occupation a machine operator employed by .Yeiland Tool and Die Company. 

e says he had knovai John Lindstrom for about a year and a ^alf prior 



o his death; that Lindstrom at times came over to his house, where 
^ he lived with <Aia family; that Lindstrom sometimes ate at his house; 
that he (the witness) visited Lindatr4)m while he was at the Kenner 
Hespital two or three times, the last time on Sunday, July 20, 1941, at 
about 3 o'clock; that he visited him in his room; that Mr. Cutler 
(petitioner) was with him; JtYiB-t when he entered the room Lindstrom was 
sitting half way up in his bed. He further says: "Well we came in and 
we asked him how he feels and he said he v7asn't feeling so g- od, and he 
asked how the family is and how the kid is, and how is wftirk sjid all that, 
and he said to ivir. Cutler, •Charley,' — he called him Charley — 'Charley, 
you are my best friend I ever had, I have got no relatives, and I have 
got a bank booknhere and I give this to you as a gift, and everything what 
is in it, it is yours.' so Mr. Cutler said, >0h, you won't die.' He 
(Lindstrom) seJ.d: 'I know I am going to die and I won't leave this 
hospital alive.' And Mr. Cutler said, »oh, you won't die, Jol^n. • And 
he st-id, 'NO, I feel it, I am going to die and I want you to have this, • 
And Mr. Cutler thanked him for giving him fnat as a gift, and he saidy 
•I will keep it until you get well, and if you come out again I will 
give you everything back. ' " , ^ 

This witBOss also testifies that Lindstrom said he had a will 
in the Barry-Broadway Hotel, which if he had with him he would tear up. 
The witness also says that he saw the bank book when Lindstrom handed 
it over to the claimant. 



"asfilsnoled alii L1?J Ic nol^iaoc^II) n&LlslB 9iiup 9i&& ot bBSiofftoq 

,dOB9 atBlloh OS oi Bi&llob OOI mortt rvisoe'i 

STAeqqa aea-iXj^fi eozcil elH .M .<i OC : ^awors fjiso •oiua'iitne aM sb ^li^GI 

.-ranfltl .iQ sjsw nslola^q a*J.JjfieJ*« siH ."^tewfiBOia fl'^-xoH S20C •« 

■»:<■ ^sd''£sH sis?l>t/J \cf a»vls saw d"ils atfJ o* 8£i 'jnosWaeJf driT 
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'■it- -' 
isei/ori alii i& st., aas^BSoa i£©'sJfcl>aiJ ;^6££;? jxlims'i slu' ^ii'^ bBvlX «d 

-isaaea 9di i& bav esi sllrfw m^iSabald bBit@lv (aeend'iw exit) exf tAdt 

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soiiabald isooi silJ f>«'x©;iii9 bxx imdv i&df \mld dilM bbw {'i»aoltli9q) 

ttl diseo s« ll^^H^ :6X»9 tmH^uf'i «H .feed ^id xxl qy t-».' ^^^sd -galitU 

9n JbnB ,fio^s os g^XIeel ^t'aa^w ©d Jbljia <Ki ban aXesl eti wod mJLd b9jLB£ m 

^^i&di LL& ba& :4i*w bX v/ori ; < bl:& sdi wori bits eX xllm&'i »dt mod J^«(a4 

t'^sXisrfO' — XBl'u^iO aid belLhO m — \xslt&dO* t'^^UuQ . 6Xii8 9x1 bOM 

ovBd 1 ba& ^amXi-zXo^ oa. io'g svMd I *bAd i«t« I fenelii. j'aiicf in »rtA «o^ 

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»H '.^Xi) t'aow ifOTt ,»iiO' t.&Xj*a '.t9l#«0 .iM «« ♦ .«a:wo^ ai ti ,^X nX sJ 

a.Lrftf »A'ia©X .t'now I bn& 9lh 9$ saXog m» I woojf I' ibJbi« (m©^.taX)nXJ) 

5nA ' .iidoL ^9X6 *'a©w istox. «dO' t-^Xat t^XiuQ •%>& XmA I ••yXXjs £B;fXq80ii 

• .airfvt 0v^ od- i/ox truBXP I jbxis eiX) eS ^nXog m& i »*X X©»1: I «oii« ,I>X-i.a •« 

^61^3 9d beta t^lX'W) .: a£ i^£>d$ mid ^rJrls taX aXd b9iaa4t i^ltuo .iK Anj 

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•' ' »rioJ6di snXxW-^i&ve uox srXj 

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b&bcuui mcn-J!:aba.ld abdJff jLtonS aloAcf «ci^ w^aa fid iAiii a^^a oaXA ^a^ix^Xw adl 



4. 

Ii^ ■ ^'^^ Kenner, the physician for the deceased, testified that he saw 

/•ijilndstroia at the hospital /four or five times. He says he asked 

X ^ 

Lindstrom in his room if he had Blade any provision for taking oare of 

the hospital bill, and that he replied no and fiirther said that he had 

turned everything over to Charles Cutler and that "Charley cutler would 

take care of the hills'*. The doctor t stifled that Linfistrom was 

mentally sound, conversed rationally, and was a man of education; that 

he discussed the classics and was well versed therein, 

Esther Keeley, the superintendent of the hospital for six years, 
testified that upon his entrance to the hospital she asked Lindstrom 
routine questions as a patient; asked him if he had any relatives, to 
which he replied no and said if anjrthing happened to him to notify 
Charles Cutler, she asked him what type of room he wanted, and he 
said he would like to be alone. She wrote the admlssionbcard above 
referred t© upon answers given by Lindstrom when he entered the hospital, 
and it corroborates her evidence, 

Charles J. Klowden, manager of the Barry-Broadway Hotel, testified 
Lindthfcrom had lived there from the time the witness took charge in 
May, 1940, until Lindstrom was taken to the hospital; that he saw 
him in his room many times, hs.d a conversation with him, the last time 
Just before he went to the hospital. The witness says: "I asked him 
if anything should happen to him, who I should notify. He said, 'Let 
Charley cutler know he will take care of everything if anything happens 
to me,' He said, ' cbarley Cutler is the only real friend I have and 
he will take care of things'." This witness also says that he asked 
LindstroB a nuaber of times if he had any relatives or anybody who he 
could reach, to which he replied, "He said he didn't nave a soul; 
that. C>ftrley Cutler was the only one I should contact** This evidence 
is unimpeachad and unrebutted. 

Louis Spear, an attorney, testified that he had practiced for 
three years In Chicago and knew Charley Cutler but never saw John 
Lindstrom in hisllfetlBMj; that the bank book, which is Exhibit 1, was 
brought to the witness in his office by Charley Cutler on July 25, 1941; 



.....it,,;.. , ^/^fr;"'*>-£N v^ 

to 91A0 -^atAs,^ "lOt aolBlvoic isib ajooia b&ti ed li aooi aisi nl moitabald 
bMi ad iBdS JSlea tsrid-iwl l)rijs oa fieilqei »£( ^BXi^f .bfui t-CIltf Is^iqaoxJ «ri* 

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;fi3rf3' laolisoubQ 'io rueja e a^w fens »'^IXi8«oXtAi fi^ea'sevixov ^^nwoa iXXs#i»« 

»isi©-£9ildf -baaier XX W a-ew fjas boIb&mIo ftild" l)«eBUoeXJl> ad 

mO'irfaJbnlJ SiB:iBB &ds Xi3;^lq@oxi ad;}^ o^ eonx^i^ae e±d coqi/ ^axi^ i)9ltl^ae;f 

ot tSeTi^«X'^<T '^riB £u8£i «<f tX a.lJi bB^B& \tn.BtiAci & as siiol^a&vp »ni;firo*z 

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.eonaJbjhr* led es^siocTcmoo *1 fine 

fil 9>ii3Jlo :Jco;f BS9fi^lv; mit amli^ srlt jstn'i e^ariif 5«vXX bad moiiibald 

WB8 sil ^Bd^ \l&^iqBOd 9d:i ot £i«ist b&v moi^Bbnld llStw ,C^GX tX*il 

smXt :^8bX »ri;J" ,flild iljfXsr aoJ:i&&iQvao9 a f>«ri «a»ffiij X"-8ia atooi aid rtX mid 

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6d odw xbodxn^ 10 sfiJvid-jsiXsrr ic«6 J^^ ®d 11 «»eX* to lodaun b ■onifaJiiiiJ 

llwos B evB. i^Rblb 9d bias »M« »f>aiXq»T: «d doldw 0^ ^doBoi JdXuoo 

9on&blY9 J3MT .fl;roB;tnoo ^Xwoda I »no ^Ino erf* sbw teX*uO"^?XT[^P S^di 

,h9itudBn:mf btis b9doji9qmiau ml 
•tol b9olto&*iq f>j3d ©ri *jerW bBltlt^^at xX^moSiB ae, xtA9qB aiuoJ 

firfcl, wfia i©Y«n ;fi;cf leX^wO \:9XijadO wenaf fciij» ogeolrio nX aiasx «©*i!d;f 

ftflw ,X trxcfiilxsr si d©ldw taoocf 3fnjeM3f ©drf Jjiri? r<BiBl*s1:lX a Id al matsbatd 

;X>OX ,5^ t^.. dliis^ ^©XifldO xti doillo aid xii aa«ii^lw 9di o* id-^ucnd 



5. 

that he returned it to Cutler and told him to keep it; tliat he went over 

to the public administrator's o/fiee and told yjr, Hubeng that he 

re£resented a client who had received a gift; that there were no 

heirs and that he would like to have an estate opened. It is stipulated 

that Mr. Cutler gave the bank book in question to the public 

administrator, taking a receipt that it should be received without 

pre^iudice. 

For obvious reasons gifts Qausa mortis {not being surroimded 
by the safeguards which the statute throws £ibout the execution of wills) 
are not favored at law, Gilmore v. Lee , ;;37 111. 402, 412, The burden or 
proof as to the gift is always on the donee to prove the facts essential 
t© a valid gift of this kind. It is essential the claimant establish 
by competent proof the delivery of the property to the donee by the 
donor with Intent to pass the title, and the proof must be clear and 
convincing. Mere possession of the propel*ty after the death of the 
owner is not sufficient to prove a valid gift. Hothwell v, Taylor , 
303 111. 226, 230; Peters v. Woods, 251 111, App. 374, 375, Where, as 
here, the gift is of the whole estate, the proof of the gift and its 
delivery must be clear and satisfactoiTr, and particularly where the 
donee stands in a trust relationship to the donor. Estate of './illiams ^ 
V. Tuoh , 313 111, App. £30, 240, Indeed, some authorities hold that 
the proof necessary to establish such a gift must be made beyond a 
reasonable doubt, 28 Corpus Juris, ?02, Par. 140 (c). Courts are 
reluctant to ba e decrees on evidence as to what deadaflen have said. 
Estate of Hanson , 304 111. App. 157, 161, 162; Re: Bodenheimer v. 
Executors of Bodenheimer, 35 La. Ann. 1006, 1007; Davidson v, American 
Paper jAfte. Co, , 188 La, 70, 89 (11), 

Appellants say courts are noj; bound to accept testimony even 
when uncontradicted, if it is "palpably improbable", particularly when 
related to persons who have died. Moreen v. Estate of Or rlson, 365 111. 
482; Faulkner v. Black , 378 111, 112; Megginson v, A^eRjAinson, 367 111. 
168, 180; Keshner v. Keshner , 376 111, 354, 363, 



/c^ 



9d ^adt &ti9diisH .tM bXoi Sma- wdit'co lA^^t^fjiffCittilalBibQ olijcfuq oiH at 

on »»r«w «i9d;t teri? 5*lis a fcevlaoo^ biad. odK iaeilo s 6«*«9Q9T;^e% 

bBiMlijqiiB 8l il .&©ii9qo ©drtt^sa fia ovmL o^ e^tiX i)ItfOfW erf 'iesfi baa artlMl 

bebtusoisxisa ^fiJt«td Joxi) s .£.* _ •£ ey ^Bi/a^ arf'Ttl^ Bcoaisyx auolvcfo -lo'd 
{a.;XJtw Id iie.:;J«j?9x© exit ^I'i/caaDs Bwo-xnc): ati;!? fid's ftd^ daldv ainairgdlaa Bdi ^^ 
10 nsfi-stfo' QcTi' .ilX^ t^^^^'^ •^Xl "PS^ tSgjsL*'"' a'^offlXiHB kWal tA btnev&'t ion &im 
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.(XX) m «09 *^J5J 38X > ,00 ^IM ^»<Nt^ 
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*sas »^3£ *XXI aVS t2fi£|feM .y laarieea ;06X ,|MX 



6. 

Jl/ The &pp«l.&nt8 suggest Llndsfcrom vae a^ntally Itieos^tent to make 
& gift of this kind at the time in qtiestion. The dlse&st from vhleh 
he suffered (caneer) h&b & orueX one and to alleviate hla sufferings 
Borphine and ma^e&ius sulph&te were administered. The teetiiaony of Jaie 
physioian is to the effeet he was mentally ec»tt|:)et@nt» and no oontrary 
nedieal testimony was offered, i^roreover* hie intention to give nOxat he 
had to cutler j^pe^rs frcHB the tvo statements made by him in his o«n 
handwriting and which he describes as "My ^Vill" which* %t the tiaie of 
the making* he evidently regarded as the equivalent of a will, These* 
while not eontrolling are persumsive. 

The proof of delivery of tlie savings deposit book with the verbal 
expressions reoited above as to the desire of the deceased to ^lv@ It 
to Cutler were sufficient under the holdings of i^this court to constitute 
a gift. In re iS state of Antliowski^ 286 111. App. 184. jJot only is the 
evidence submitted by claimant here sufficient to establish the gift* 
but we think the evidence submitted by the public administrator also 
tends to corroborate it. It shows that John Lindstroa was the illegiti* 
mate s<m of a woman in Sweden* who gave birth to two other illegitimate 
children* one a boy ant the other a girl* neither of them* however* 

r by the same father as John Lindstr<Mi« //afterwards she had a legitimate 
daughter one of the heirs as fotmd by this court,? faking her younger 
son with her* she went to DenmarJc* and then to iuaarioa* practically 
abandoning John Lindstrom* leavii^ him with a family named Anderson 
when he was twelve years of age^ There is no ox^dible evidence 
that John Lindstrom ever did anything to indicate he considered taese 
"heirs* as his relatives. Tlie mother has been dead many years* After 
the death of John Lindstrom and after it appeax*ed he owned considerable 
property* the Swedish consul in Chicago s«it the following cable to 
the Swedish cabinet in otoc^'holm: <*Jhicago* November 6* 1941* IIS 
John Lindstrom, bom May 26* 1672* died here July 2Srd* leaving a o>en- 
siderable estate. Mother's name Oharlotta. The naoses K. J. Llndstrm 

Otstafsea* Alnoe* victor Ltedgreii# Vaespervik is mentioned leaving 
some notes. Examine into the question of theirship and telegraph 
the x*6sult.« The foreign department caused the fact of death to 
be an ounced over the radio in 3 eden "requesting relatives to make 
thmselves known. " a su'oosed cousin in Sweden wrote to a cousin in 



' .. 

, rjilnebruiibt 

■ auoflx; :-* ti 'i- JMBk 9tti 

-«oo ... , , . liJ ndol 



7. 

Hartland, Wisconsin, ano she in turn notified tiaese persons wh& lived 

in salt Lake City, utaii, after 1901. 

austave Vllhelm Lindetrom the other illegitimate son testified 
that he had never seen the deceased in the United States. He came to ' 
America with his mother in 1365 and lived with her until he was about 
14 years of age, she died June 16, 1926, atv Salt Lake City, She was 
horn April 16, 1849; he on April 23, 1874. The last time this witness 
had seen hie deceased brother was when the brother was 11 years of age 
and the witness 9. They were on tue docks at sundevall, Sweden, prior to t 
the mother and the witness leaving for Denmark, This brother saakes a 
favorable impression as a witness, but his testimony, considered with 
all its inferences, tends to corroborate the claimant's case by 
showing that the gift he made to the plaintiff Just prior to his death 
;.as reasonable and probable, 

Fr«m the uncontradicted evidence we think it a fair and Just 
inference that deceased had ceased to know, or at least care, anything 
for these "heirs". Probably they were the last persons on earth to 
whom he wo\ild have wished to give his estate. Under all the circum- 
stancee, the gift made was probable and consistent. The evidence is 
uncontradicted. The witnesses are credible and uninipeached. The claimant 
could not testify. The Judge of the probate court and the Judge of 
the Circuit Court were constrained to the same conclusion we have felt 
compelled to adopt. ;.'e hold the evidence sufficient to establish the 
gift causa mortis of this estate by John Lindstrom to Oharles Cutler, 
the claimant, as alleged in. his petition. It will therefore be affirmed, 

AFFIRMED, 

©"Connorj, P, j,, and Nieaeyer, J,, »onour. 



•XOGI aeStA ^^U t'^d'iO e^iaj Jlse c^ 

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,9Xd*3cfo^q 6iss eXdanoBBPi 

gftXd*X«3 t«tj»o *aB9X <.^ii 10 ^wofDi otf .oeaxjao Jbsd l)9a4aoe.5 S&dt aonaiata. 

o? di^ijae no afloaisq '^a&l ed? ssisv/ x^^!*^ ^Xdadoil ,« ailed" eaadi' 10' 

-EtuoiXo mlt XXb la^rftj .ad'-s;?a« aid ©vXg o^ ijsdaiw «vBd fiXi/ow ari incwfi 

el 9oae£>iV8 en'T .ias^siBaoo f>iiB ©Xd£id"oiq a.dw afusa 3"lla ®d;t t8«onA^i 

^TfiBialisXo adT *^9doB9qmliUf J&aa aXcfl£)9io 8rLa ae9saii;flw adT mbt^olhetiaoom 

to aglsut 8ii* ^^^ tiuoO a^^doiq ad* to 9^ul adT ^x^-^^^a** ^0^ JbXuos 

*Iol srad aw oolajuXsnoo asiae ad* ot beniartisnoo aisw *iiioD *1j^oi10 ad; 

ail* d3lXd«*ao o* ist9lolttssB a9nei>lva ed* £>Xod ^Tt niqoba 0* ftaXXaqMM 

,i©XJwo aeXisdQ o* HOi^eftalj odoT, x<^ 9*B*aa aid* to al*iOffl aanBg *11: 

.'Banltt^ 0d aiotaisd* XXiv/ t:; <,aoX*l*oq aid nt^ ^tajsXX^ aa t*nflailaXo 9d' 

.monow ». 'jaall'i B«a t.l .•? ,ionnoO'', 



42607 

NATHAN FIND :R^ 
V. 



Appellee, 



MORRIS .vilLLER & CO., iNC.^sft cor- 
poration, \. 
- Appellant. 



^20 I. A, . 

ATPEAL FROM 

MUNICIPAL COURy 



OF CHICAGO. 



/ 



X 





y 



MR, JUSTICE MATCHETT DELIVEPJED THE OPINION OF THE COURT. 



July 14, 1942, plaintiff caused Judgment by confession to be 
entered against defendant on three promissory notes. These notes 
o«ntaln power to confess Judgment for any amount due. Two of the 
notes v?Fre for the principal amount of $275, the third for the sura of 
§350, Each and all were drawn to the order of plaintiff; each and 
all were dated February 15, 1935, and each and all by their terras 
drew interest at the rate of 6^ per an .um from date. 

These three notes were executed and delivered as a part of a 
series of ten notes of the same date, executed to the order of plaintiff 
for the total sum ©f S2, 200 on February 15, 1955, for a loan of $2,000 
■ade by plaintiff to the defendant corporation on that date. The loan 
and execution of the notes were authorized by the Board of Directors 
•f the defendant corporation February 13, 1935, and on the s:/Jiie date 
the Board also authorized the assignment of a leasehold held by 
defendant to secure payment of the notes. This assignment was executed 
and delivered to plaintiff by defendant at the same time. 

On an affidavit made in behalf of the defendant corporation to 
the effect that these three notes were in fact fully paid, a trial 
on the merits was allowed. The trial was by the court, without a 
Jury, and the finding was that on the datebthe Judgment was entered 
the amotant thereof was due on the notes and that said Judgment should 









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fi Iw »viXol) Ms b^tuo&xe eto~ aed'on ©sari* ©asxlT 

000, g^ to ttAel & rol »SC-. i :^'xAsn(J9'i no OOStS<^ lo jfiuy© Xxid^o^ ©xii nol 

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atotovilQ. \o fyt&oB ftrft Tjcf i)9s iioriJjjB ©^9W e«;^on arfjf to fiOi;fuo©x© bA£. 

o:}s.b SEihe ©d^J" no ban tdfiSX ^CX ■^Awncf©? a&i^s,ioq^oo inAha9li9b •rid' 1© 

■^cf hl9£i Mo£f«3 59X js lo rf'n©ffi«;slF B-S &di hssLliod^tsa o»Xi J&rcjeoa ad* 

.&©!ft;o©x9 BBW ^nsawtgjtesA aXrfT ,aeJ-oxi ©ri* lo Jnsurcsq sit/o©© orf' ^^asJbii©!©!) 

,emlt ©0jGa ®d* a'a ifoafectlQb x<i 'ill^ntalq Qt ba^zwll^b bit& 

9t nolisnoq^ioo ifi&ba9l9b offJ to tL&iiad al 9bsu ■iiyrBblt'hii-'iia no 

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jB ;fuoi/Jlw ttiwoo ©fit xd 848W XiBli:)^ oriT ,£>«woXXs 8BW a;}'li©a ©ii'3' n© 

I)©i9d^fl6 ©jBw JneargJbJut ©ilil'dait^ sritf no tad't sbv snlbait ©rf;? ba& iX^tti 

bluodB in9mi)bul bls^ t&di ba^ asion 9di ao eab a«« lo9t9di ^nuoms 9dt 



2, 

stand. The items constituting the amovmt of the Judgment ^ere the 
principal amounts of the three notes: $275, $275 and $350, a total 
of $900, interest thereon from February 15, 1935, to July 14, 194£, 
at 6%, 1400, and attorneys' fees of #145, making the total sum of 

11,445, with costs. 

Plaintiff had possession of the three notes uncancelled and 
the assignment of the lease given to secure the payment thereof. He 
offered these in evidence. This cae* on defendant the burden of 
proving payment of the notes. 

Wh«n the transaction of February 15, 1935, took plaoe Morris 
Miller was President of the defendant corporation. He died July 4, 
1941. The defendant undertook to prove th^^t these three notes were 
paid in full by defendant to plaintiff with three checks of defendant, 
one dated November 30, 1935, another dated January 11, 1936, and a 
third dated April 30, 1936. These checks are in evidence as defendant's 
exhibits Nos. 4, 5 and 6. These checks are for the sums respectively 
of $287.38, $288.75 and 0357. There is no dispute that plaintiff 
received from defendant these checks and cashed them. Further, there 
is no dispute that Nos, 1 to 7 of the snries of ten notes executed 
and delivered by defendant to plaintiff on February 15, 1935, have 
been paid/^r surrendered to defendant. The contention of plaintiff, 
however, is that these three payments were rightfully made and ap lied 
not to the notes upon which judgment was entered but on notes given 
when another loan was made by plaintiff to defendant in September, 
1935, before the maturities of these last three notes of the first 
series. This alleged loan Is represented by two checks, which are in 
evidence as plaintiff's exhibits Bos. 1 and 2. No. 1 is the check of 
plaintiff to the order of defendant for the sum of !g200, dated 
September 4, 1935, apparently caJshed by defendant the following day. 
NO. 2 is also the check of plaintiff to the order of defendant, dated 
September 19, 1935, for $600, also cashed by defendant on the following 
day. The bookkeeper testified to the receipt of the proceeds of these 



r ^ ■♦ ,- -»■ 



r 



41 

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e-icjw asifoir ©©*nl# e j!«a':t ^Adt avoTiq lad- iootae&mr: Jimiaae'i^b ®a'2 .I*>ei 

& hna ^BijQl ^11 v^jitato^ b9^B£> i^ii^ionB ,9CGi jOS i8cfB5«vol5 b9fMA ©jfo 

'-^^bfi©!:©?) fea »o-rjeI">lv© ,v' '.fi ^iissifo eaeiiT .©561 ,05 Ltnqk fcetfsJft Mlitt 
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©vsif ,€561 <ex is'iBifids^ ir« m^itl«Xq c# ttt^^rt^'it^b \d 6©*t0viX8c fcna 

£191X90080 

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Paaii;^ 1:o aMacoiq ©a* lo ^tqiftotv- ©ri^t oJ r^sltltfaai fOcs^s^iCcod »rr .\ab 



3. 

checks by defendant. Plaintiff did not keep any books. Plaintiff 
testified to the execution of these checks at the request of Miller . 
He also testified that he received from Miller for the two oh cks 
three notes pf the corporation for the tolial principal amount of .;;900, 
He also testified as t© conversations he had with Miller at these 
tlmesi but the conversations were on motion of defendant stricken by 
the court, relying on Helblg v, citizens Ins^ Co. , 234 ill. 251, cited 
with approval In Lucth v, Ooodknecht , 545 111. 197,201, Although the 
conversations between Miller and plaintiff were stricken, there was 
evidence In the record from which the trle.l court could find that the 
transaction amounted to a loan and that notes of the defendant corpora*^ 
tlon were given by iilller to plaintiff for the sums of money advanced 
to him. The cash book ©f defendant shows the receipt of [,200 by 
defendant on September 4, 1935, and also the receipt of ^600 on 
September 19, 1935. The ledger, admitted In evidence without objection, 
has a notation by the Bookkeeper, Mr» Marreok, made by him at the 
request of Miller, which Indicates that the transaction was an exchange 
of checks, which Marreck says was not an untsual business transaction. 
The notation was made by direction of Mr. Miller but the corresponding 
check or checks could not be found by Mr, Marreok after a diligent 
search of defendant's files. It does not appear that any Inquiry was mad 
made at defendant's bank, where It should have been possible to find 
such evidence If the transaction had been of that character, 

Bernard Miller, son of the former president, testifying as to 
the three checks said that he had seen them; that they were a part 
of the Finder file and attached to certain notes, what notes were 
attached thereto In the file Is not made to appear, and this was 
evidence In the possession of defendant. There Is no evidence as to 
whether these checks were delivered to plaintiff personally or sent 
to him by mall. In fact, defendant's evidence falls short of showing 
that these checks were given In payment of the particular obligation 
sued on, 11 C» J. S. 101, §662. 

As the trial approached Its end, the trial court suggested 



aio^xi© or* ®rf* tot «6lXlM mo-rt I>«vttsroei dri t^d^- l>©ill;rBa4 oaX& mk 

IjditXo ^iSS .XXI *€S t^ cD .eel tjaesld-ip iv ?il«l6»H no ^iil'^cls'i *;?iyoo eii^ 
©flj il^jJoaJIii .XOSt^eX ♦XXI S*<; tM£*i^ll£2£ •'' ^•^^«Jg4 «X Xinraiqqa ii*lw 

tn;: -.00 ^iifea IjbXi;^ dil* xloMw aeil J&ioo9i mLH at noa^bl^^ 

*e«njevJC>jB x^tsom to amt/a axi^ lol tlltitl^lq o* '£»XXXM Tcf flftTlg anew floi^ 

Y€f OOs^' lo iqleo&i edi ewoxfa tflfiAnalal) to atood ria&o arfT .aJtii ©d" 

fio OOQ^i to ;fql©09ri axi;f ©sXb fciSB «36CX ^i-' ladiaaa'qee no t«6*c»t^ft 

^fl0l.to9{.efo *«or£;Mw aona&Xra ti£ bBt^ttsb& tiagfcaX ailT .3S6X tSX i9£fflt»«r^[H 

fliid- *B «ix£ Y<J 9^«a ^icai-iBM «'XM ,fc'i©<5a92l3lootf ail* xd nol^s^on » aad 

9SXifi^oxs OB asw coX^ojAaas'j;* ©if* tf^xft aait&oJtJ&fll riolxiw tiaXXiJj to tfaaujwi 

,noi*OBanja's* aeanXawd^ Xstfatiur na *ofi ssw aX-sa atoaiijsM itoMr (ajfoario to 

SfiXbaoqaarrafto aii* *tfE( ^XXIM .iM to flol*oanif> ^ef «^-Ba asw nol*e*ofl aiH 

*n9slXL5 B >r©*t>s 3f©0tiijM ♦'sM t'J f'lai'Ot arf *oi!r BXiroo a:Soarij> to atoado 

6fiE ajBW xii^P«X xtiB it&di 'ssQqq& t<m aaofe *I *araXXt a'*flBi>cateJI to ^UMMoa 

fiisXt o* eXrfiaaoq itaacr ®r&d feXiiOxfe *1 e'-raxfw ^Ja&tf a**£tAbaatafi «|jf •*«ffl 

.i9*ox^iarIo *ad* to neacf £»i5il noi^esaaat* sri* ti edfiaJ&lva -;4«tfa 

0* ^:ja a^i-^ftitaa* <S'aaSJ^©'iq cannot ©rf* to «ob tisXXlM brtBtnma. 

*r..':»q B atow ^ad* *.id* ;££<«£!* neaa bad. ttd *b£[* J^i^^a a:3{aaila aant^* axf* 

'."X9W a8*6n *&c{w *aa*on iULa^iaa o* l>aiio£**B Bxxit aXit lafini^ ajcc* ta 

SiCiW aXjd* bcvi (i^aqqA o* aAjais *on aX aXXt axf* ni o-ta^axi* bBtLoAtim 

aoisa£)Xva on aX aiaxi? ,*aafin»ta£ to noiaaaaaoq a£{* aX aaiMiJ^Xra 

o'aea rco tXXBnoaiaq ttJb^cXAXq o* JiiaiaTlXaJ^ arraw a:3iaaii:o aaaif^ rcaiO-afi&i 

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.2&a2,XOX , . .D XX .no *a«t 



4. 

defendant's former bookkeeper, Mr. Marreck, should have an opportunity 
to discover the cancelled checks supposed to have been taken in 
eKChange for these checks of plaintiff, Attoi^ey for plaintiff approved 
the suggestion, and the court asked Mr, Marreck whether he thought 
he could do it. Mr. Marreck said that he would have to go over the old 
files. The court said: "iDf I understood you, you said you could either 
find the cancelled checks or the cash disbursements'*. Mr. Marreck 
replied, "Yes". Hearing of the case was then adjourned. At a later 
hearing Mr. Mareck testified he had made the effort to locate the books 
and records of the defendant corporation in support of his testimony 
to the effect that these were exchange checks, as Mr. Miller had 
directed him to note. Mr. Marreck then testified he found the particular 
item of 0200 received by defendant September 4, 1935, and a deposit of 
t600 on September 27, 1 35. On cross-examination, however, he said: 
"30 far as I know, even if I had followed the regular course of procedure, 
my search does not disclose the repayment of these two items in any 
way. " 

ThlB testimony seems to have been decisive with the trial court. 
Apparently the court was of the opinion that the transaction was not an 
exchange of checks but a loan of money. If it was, then so far as this 
record shows the plaintiff had a right to apply the proceeds of the 
three checks defendant afterwards made to this later indebtedness. 
Liese V, Hentze, 326 111. 633» 659. If these payments were so right- 
fully applied, the notes here sued on have not been paid. 

Ourrdombt in this case arises out of the unusual fact that there 
is in this record no claim or proof by plaintiff that he made any 
demand for payment of these uncancelled notes from the time the same 
became due imtll the beginning of this suit, suit on the notes is 
not barred by any Statute of Limitations and no claim of such defense 
is made. Defendant has plausibly contended ths.t the lapse of time 
without demand for payment might raise a presumption that the debt 



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•) «ie««r 

tvB, (fori a«w ii©i:*os8nB'x;f erC* if&rl^ coiaifio oriS^ to aaw ;r«it/os ad* '^I;ff»»«xs<{qi& 

od9 to afiaawcxq art* "^Xqqja €># M^X-s & ^/2il tll^nXsIq ed^ awoUt trtdi»<»*i 

-i.d'^.li ©a ^mv tiisoia^jaq «»©iU ^I .QGe %€&© ■•XXI fis£ A.»s^i^H .v eadlj 
*.biBq «ea^ *oji avBil is© l)0«i& 9«rf>xf ee;feA «ii3' ,A«iXqqB ^cXXut 

^«& «£«ua ail ^ssA^. ttli&t&Lq xH l«oiq *to alaXo en Mooea il£f;t ci al 

8.f. R®;ton 9«1* 1x0 #^1jj8 inline sXd* to attinalsscr «rf* Xi;fra/ auf? «ii^&»«€ 

©aii«l0i' dom to 0lsXo ©jfit bne, Maoli$^lmld t« «*»5r&;r6 tflr* X<f lietiatf *•« 

sihJl^ to saq^X sxCSf )i^AiU ^£«fi^n6d 'tXcfiaoBXq aail ^n^Aatd<I .oJ&Aa el 



s. 

i^prestoted by the notes had been satisfied, v/e approved this principle 
In First National Bank v. Simon, 312 111. App. 214. Plaintiff was 
not aeked to explain his failure to request payment of the notes. The 
fact of this second loan hjwever, creates an unusual situation. In the 
absence of directions by the defendant, of which there is no proof, 
plaintiff would havt the right to apply the payments upon the debt for 
which he did not hold security rather than on the one represented by 
notes for whl¥h he he?-.d security and would naturally and probably do so. 

The trial court, who sew and laeard the witnesses, found that 
payment of the Indebtedness for which suit was brought had not been 
proved. The finding of the trial court has the same weight in this 
court as the verdict of a Jury, The question for our decision Is whether 
his finding is clearly and manifestly contrary to the evidence. We cannot 
eo hold on this record. The Judgment of the trial court will therefore 
be affirmed^ 

AFFIRMED. 
O'Connor, p, J,, and Niemeyer, J., concur. 



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eiol:©i9rfcf liiw *iuoo ijil*z* eif* lo r^neai^tsl edr' .Mobsi aMt ao Mod oa 



I 



42617 



3 20 LA* 361 



LEO A. RYAN, AcLminist ator of the 
Estate of Chauncey Esch, Deceased, 
Api'^ellee, 



CHICAGO AIID NORTH ^7>:sfE!ai.:llAILWAY 
COAiPANY, a Corporatlpii, """"---^ 

Appellant, ■*^, 





APPEAL FROM / 
CIRCUIT GOfURT, 

COOS /COUNTY. 




MR, JUSTICE MiA.TCHETT DELIVSllED THE OPINION OP- THE COURT. 

This cause was before this ootirt on a former appeal by the 
plaintiff. Ryan v. Chicago & North western Ry. Co. , 315 111, App. 65, 
There it appeared the trial court, on facts substantially like those 
which appear in this record, atvthe close of all the evidence directed 
the Jury to return a verdict for the defendant and entered judgment 
on it. The theory of the trial court was that at the time deceased 
was injured he was a mere licensee on the premises of the defendant 
railway, suad from a legal standpoint the only obligation of the 
defendant was not to injure him wantonly and wilfully. The complaint 
charged both general negligence and wanton conduct. It is unnecessary 
to state at length what was said in the former opinion. We quoted a 
paragraph from the opinion of the Supreme Court in Neioe v. Chicago & 
A. R. CO ., 254 111. 596, as follows: 



HI To run a train in the night time over un- 
lighted station grounds without a headlight^ 
and without any warning by bell' or whistle, 
along a platform where persons may reasonably 
be expected to be, is evidence tending Jo 
prove a wanton and reckless disregard of the 
safety of such persons. In such a case it is 
not necessary that there should be specific 
knowledge of an individual on the track or 
platform or specific ill-will toward or an 
intention to injure an individual. ' The Judg- 
ment was affirmed, " We added; 

"la the instant case, if, as the testimony 
tends to show, defendant's brakeman in charge 
of its train was not at his place of duty and 
ran the train without a headlight, and with- 



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:awoxxoi Ba <aefl *xxi >as t. »o ,h ♦a 

-r ' • ■^ skX;? ?rfsXn srfd" flX 0Xi:\j o?'" 

'^ 10 Xlori vcf ;piiin.BW x^xa Jjjo. .; . x &n,-: 

Xli. X,£'-si enO;} eq 9i«riw fiPiol^aXq n rcncl.?:. 

o-?, .^rj.iinis^ e^nftbiva aX ^Bd oif ' " '" "^ 

9rit 10 1)1^99^8 XX> aaaXioai lias no« 

«X :fX <9a^o /> dokm al •euo:.* — "- ; ro ^^vi'-m 

oXlXoeqa ®cs bluoria ©isxid" :' -iasoen *cn 

10 ^o^-ii ^iU no XivJj'X.iyXl)nj. .;.. \o 8si>9Xwortii 

xiB 10 X.'i^vvo-J XXXw-XXX oXlXooqa 10 sanotiaLq 

-g^jk't. «xlT ' *XBUi)Xv-£jbfii na a-xxft^ 0^ noXi'a8;taX 

:X>«£>I>B ew " tb9BsrtlViA aB« ^nam 

iC<iC{T(id8 9* e^it ISA «,1X taafio ^rusifBiiX add* nl« 

■ ^' cfX nBXKe:!i«'xcf B*iiiA.ba9"teb ,worf8 o;f afina* 

.& !to «o£Xq aXxi. d^a Jon bjow nXBit atX to 



2, 

out warning by whistle or otiierwia©? upon 
approach to this station, then following the 
Nelce case and assuming the deceased was a 
mere J-lcensee, we hold plaintiff would be 
entitled to have submitted to the jury the 
question of whether defendant was wantonly 
negligent. However, we hold the decedent was 
neither trespasser nor mere licensee but was 
rightfully on defendant's right-of-way, when 
injured, upon business which required his 
presence there, and that defendant was 
obligated to tr-e use of rec.sonable care not t© 
injure him. There was evidence from which the 
Jury could find the defendant was not in the 
exercise of due care. There was also the 
question of whether defendant under all the 
circumstances was negligent^ but these ques- 
tions were for the Jury, •• 

The evidence in this record, we hold, is not materially different 
from that given on the f03»mer trial. Defendant again as formerly 
arguee the deceased was a mere licensee and the defendant's only duty 
was not to wantonly injure him, Vife adhere to our former decision 
and hold that there is sufficient evidence to go to the jury under 
either count of the complaint. 

It is urged how that the court erred in receiving and rejecting 
evidence. The elevated stinioture on which defendant built and ran its 
railway was constructed in conformity with an ordinance of the Village 
of Oak Pari, which provided that the operation of defendants trains 
should not be subject to the village safety ordinances. These 
ordinances also provided it should be unlawfiil for any person to walk 
over or across the elevated structure &% any place. This was alleged 
in defendant's pleading and not denied by plaintiff. On the trial 
defend£>.nt offered to prove these provisions of the ordinances. The 
offer was rejected by the court; nwe think properly. The suit was not 
based on this or any other ordinance. The ordinances were wholly 
immaterial and the court, we hold did not err in this respect. 

It is also urged the court erred in allowing the evidence of 
Jose oh McCombs given on the former trial to be read in evidence. 
Brownlie v, Brownlie , 351 111, 72, is relied on but we think it is not 
applicable. It appeared from the evidence of bis parents that this 
witness had been inducted into the United states Army on JrJiuary 5^ 



fi«xtar ^\ ..,ii 

©;t ton Q''iAO ^.c. iv/ aai^ • * '"■'* ■^'' ' 

-^^j^jfe %Xiio a * a fi-gl^riiftUei^ 94^ b&£, asafiooil s-aeis ji 3^« £>aaxteoai> e£lLJ' aeusiA 

t&^m/ vs^t 9Ji-'!i oi 0$ o^ ao^dl^iva ^a^lol'l'^^ ax aiaii;2 :t^;f ^Xod 6a& 

Sitl5©»t©i l«m snivl©o©i ni .©©-awo rf-iMoo ©ai* :t«4^ wod J*8^ir ai *f- 
ei-i £uri &jxa tXiirtf tofi&Mrl^^ i^isiw ao 9^*/«t«ftnd'B J^e^isv©!© aalT »30iiex)iv9 

©aor® *0 90imnlM© ^i#©1[iae ©s«LlXiv sil* o4" rf^oottfwa ©<f Jon J^Xuf^cffi 

irlmi 65 isoai0q -^na lot lutasLlmi s(J J&Xyoila ;?1 i>©x>XvoT:q qbIb aesoaaU^^ 

i3.9a©XXa aaxT aJUi3.' ^ao^siq ^s t» ait'^oirarf-a 6©;r£v©I« axl^ aao^dA to •ssro 

Isiiit ©jiit^ no .itlifiiJLsIq -^cf l>©lii»p ton ba& goiiiaajlq « ' ;^ru3l«x©t»i ni 

©JlT ,a©ofiijnJL£>no an;? ao snoialvonq ©a ad;? ©ir<yiq o;t dsniallo Jn36fl9laJ& 

-^Xloxlw sn£$iir aao^isnlMo 9si'i ,©ofl,&ai&'xo latnuto > aXcI;t no ^©ajsc 

*;^&aq8e^ aXii;t al Tr*; ..i> ^cd (n ^inuQo ©xiit Jbisa XaX'xa^.^aB.' 

.aonsi)i7@ oi baet 7 ao atvl^ bcTkoDoM ilq©t©X» 

ton al ;M iitid* «w Jj;d no belli^t »^ , . .C^ t oilirwo-xa .▼ ailnwottg 

alrfi' tjBdcl" a^xTfltaq aJba ^a ©ouaiJlTrQ a4* nw^l J&fSAsqiqa tl ,sXcf30 iXqqj 
^a X'i^wnaT. fio -^fl!^ e®^+^a i>e;fin;Usaul#,#J«l X)©;Jt>«l>ni naacf Sail aaanst'lvN 



3, 

1942, that he was a mechanio in the Army Air Corps, and when last 
heard from was about to be sent out any time for foreign servloe. He 
had asked his parents not to write to him until chey heard from him. 
The place he was to be sent over seas the court would, know was a 
military secret, which could not be properly disclosed. We hold the 
court did not err under these facts in permitting the former testimony 
to be read to the Jury. 

It is also urged in behalf of the defendant that the court erred 
Inbgivlng instructions on behalf of the plaintiff and in refusing to 
give instructions on behalf of defendant. e have examined the 
instructions refused and given and hold there was no reversible error 
in this respect. 

In behalf of the plaintiff the court sulaaitted to the Jury a 
special interrogatory as to whether the trtiin of defendejit, at the 
time and place in question, was wilfully and wantonly operated so as to 
cause the 8^.me to strike plaintiff's intestate, throwing him to and 
upon the ground and under the wheels of the train, inflicting injuries 
upon him from which he died. The Jurors si^ed but neglected to answer 
the interrogatory "Yes" or "No", It is urged that because of this neglect 
of the Jury, it was error for the court to enter Judgment on the general 
verdict. There were counts charging both general and 7/anton faegligenco. 
The interrogatory was given at the request of the plaintiff. We hold 
defendant has no re .eon to complain on this ground. 

The important question in this case, as we view it, is the legal 
•ae of whether the officer was on defendant's premises at the time he 
was killed of right or as a mere licensee. We have held he was there 
of right, and that defendant owed him the duty not to injure him either 
negligently or wantonly. The Judgment will be affirmed. 

AFFIRMED, 

O'Connor, p, J,, and Nieaeyer, J., concur. 



* 



,c 

js sav TTcrJf filtrew t'Sirpe iwi?' i!!3«« tsvo tK»a 9(i cd- bbw ari eoelq ©iff 
X£ioisl*ae* isfflicl: exiit 8Jfi^*ljCT»q ii.t 8*Ci3l 9s»ti;r -xsfinjK 'iie ^on l>iJ& ^imoo 

o? giiXs*fl6's fll M& tlliff?!?!^ 4|tfJf 1^ llaHctf fjc anoldr&'tfniJcci gnivigcfiii 

sdc' i>«aiffijaxe ovjsn ./ii&fon©'ie^ ^o 'iXaciecf no ^.txcHois^t^aX »Tii 

*s:ctT9 0ldXrr«rr6rt On saw 0*f9i{t MojI Bna iierjCs fins Jbaatfls^ a no Itoxrc J a ni 

.^oeqaei airf^ nJ 
s XTwt, arif o* ^wiJJJtofua tiiroo ©rftf "i'iii'nlJBXq »ri;J to ILsxi^ nl 
silj tf'B i^JnabnsleJJ to ci oii' sifiti- leii^fe^vr oJ ari icio.S'^soTie^nl Idis»qa 
o;r 9B OS .C>9*i5*ie»c[0 x-ntii'Dawf BjcfiB t-^IalXIw UBW ,nol;fs*j;/p ni ©oaXq Lna sfiiti 
hue. oi mM ^n-Jtiroiif;? t^vtsiTad^nl s*m:fftI^Xq »:iit*a oJ dfflBa •ri;f eatf^c 
9^3fti3\,ttt %altolZ^al tiilR'^it srf* to aleoxfw erf;f isfcni; fias bavo't^ «ri;r noqi 
i«iysn^ od- bs^fOQlgdn ttnS Wit^^isa. n^oial eiT? »6»1S erf riolxlw Hftrtl niri noqi 
Cf08l3«n aifi* "to »8waoecf *&ri^ x*31JJ' aX *^I ."oW* to "aeY* ^lo^jcsc-itatni exx 
Xsi^fps^ erfd- no tfaaffl^fetit is^ne otf' >*xm50 siM •sol rtoirra ajsir tl iVtui Bdt Ic 
,eofl«3xIs9«l fl©tnjB»f fena Xsiwiag xJ^ecf sal^i.fsilo sJmroo sisw e«xdriT .^oHwc 
M©il OW ♦^tXinXaXq »rf^ %o ^aWpsi irfd- 'i& tarrt^ sb^ tto^sSOiTca^fil wfl 
,.f>fij/o^ aXfltS' ne fll«Xq«oo ot noa iet on aarf ^naJbaolvi 
X^ig^X ^dt ,^i t^f/ ?v»/.v e« sa t«aB0 ala* ni aoi^Tam/p tfiiaJioqcrl arfT 

laolS saw «ri feXatri erati . 'snsoil «ioa a aa 10 ^ifsli lo J&aXXil a£i 

•S9a;ri« ffilrf e-ti/tnX o;t ton x**** s^* *-W fi^wo ;*'flii£>nel®f> ;J^* hna ttUaXt t< 

♦fcaawilla »d IXXw t^nisffisSt/t *ciT •l't«t\iaaw to x-J^^naaXXgax 

.•xi/onc. ,. ,':9X«a(»iM *» ►^i ,^onnoC' 



SS^j^I.A. 361 



42629 



THE PEOPLE OF THE STAOH OF 
ILLINOIS, 

Defeo^^ant in error, 



PRANK EDELMAN, 

»' Plaintiff in error. 




2_ 



/% 



) 
) 
) 
) 

) SRRPR TO 

) 

\ MIMICIPAL COURT 



OF GHI0A&O.\ 




/ I 



"^. 



MR. JUSTICE MATCHETT DELIVERED THE OPINION OF THE COURT, 




Defendant was tried on an information which charged th£.t he 
"on the aid day of October, 1942, at the City of Chicago, Goimty of 
Cook and state of Illinois, aforesaid, unlawfully, intentionally, 
and maliciously, did, then and there, unlawfully, willfully, wiciedly, 
maliciously and scandalously have in his possession certain lewd, 
wicked, scandaloufl obscene Im -oral books and literature to the 
manifest corruption of public morals in contempt of the people and 
the law, to the evil example of all persons, in violation of Paragraph 
468, Chapter 38, Illinois Revised Statute 9,3.941, and Smith-Hurd 
Illinois Annotated statutes for the year 1©41, contrary to the form 
of the statute in such case made and provided and against the peace 
and dignity of the People of the State of Illinois." 

The record shows that the Information was filed, defendant 
taken into custody and that on motion of the State trial was set for 
October 21, 1942. A motion wa« made by defendant to suppress certain 
evidence which it was averred had been unlawfully seized. On 
KoV«niber 18, 1942, before Judge Joseph B, Hermes, defendant was 
arraigned, pleaded not guilty, demanded a Jury, and the trial was 
set for November 30, 1942. On the same day defendant made a motion 
to withdraw the plea of not guilty, which was denied, and his motion 
to suppress evidence was also denied^ The trial was set for December 
9, 1942, and afterwards for December 14, 1942. Defendant waived 






52©S> 






( ■ aT '50 J HT 

( .. .—II 

( 



,ZO^V:^ iil llUtS. 



.•muoo 3WT '10 MoiMi'iO 'dm aaFSYiJSCi ttshotam aoiTeut .hm 



■I 



lo ^;tfliioo «e®Boiii;o '5© fiflQ »ii;* *fi <S*SX 4'£9cfo;r©o lo xbI> J&rtSt «iS;t no" 
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»i&Xfoa3Co±w i%li&XLll^ tXlljs^m&lms ^^nadi bOA atnit ^!b£b ^x^B^olollAa btu^ 
4iMir*X ctX^i*t3& flol8B«aaGq qM £il aVsri "tXt>t.*oX,SLfeiifl08 feft^s •^lauoIsiX** 

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flWE©!: »iiJt o* "^^*i?isoo »XMX 1&&X ftJ'i^ io^ ae;fAf^£i'8i *»*&i"onxu aioniXII 

osjseq erf* ^scXss^ I)na fi©^Xvo*£g ^h» ajbfim •sbo r£c*ri ill 9^u:X»t8 Bil^ lo 

* »a louiXXi t« a^a*8 witf lo ©Xqo»q exld- to y^^X^XA 6tta 

3"flii&fl3»'i©l> t^eXXI &a^ aolitmnGtaX arid- tfaxli^ sworfa fi-xooei eilT 

lot See Bssf iMl^t ©^jsJe «i4tf lo noXd^oifl co tAtli boA ■^oa'«i;o oi^ni n93iAt 

nXijtfieo 8seiqq3ua ©;? dr«»6nat»l) i«d »-&«e »bw coXSoib a .S*CX ,XS letf^JfoO 

£10 ^Sesiea ^XXi;^^/i»Xjw iid£>ct £iad ^9^'ieTA sasr il doldm •oa^blf 

SAW driBfocdioi) «*«t(nt«*H *a cqeaoX* «afitrX. eio'icd ,sfrex jSX istfiatvoK 

aa»r XalTl ©rid- Lna ,x'iwt. « £»9tiSAfi«fi »^;rXXus toa AelmaXq ,i>»n8X^Ti£ 

no 2*0® A 0&MR sraabissloi) xa6 •£&« mi aO ^*^9X ,0C "xoc/bsvoM lol tfsa 

floXtfOBf aXrf 5na ,MXn»Jb aaw rioiiiw ^t^XXi/s {Tofl \o A9lq aiiif wa^MiTXw •^ 

isamaosa lot d'sa asw XjsXi? edT ♦fiaXnafi obXb ajsv aoaaSXva aaaiqqira oi 

J^arlaw tfis/jnataa .S^GX ^M lacfiEaoaC lot aJ&iBwialtA fiixa tSi^ex ,6 



2. 

jury trial. The cause was tried by the court without a Jury, and the 
court, after he^iring the testimony of the witnesses and the argument 
of counsel, found "the defendant guilty in manner and form as 
charged in the information herein". 

An application ©f defendant for probation wag denied December 
29, 1942, Defendant moved for a new trial. The motion was overruled. 
There was a motion in arrest of Judgment, which was also overruled. 
Judgment was entered, and defendant wae senten ed to confinement in 
the Coiinty Jail for six months. There was a motion of defendant to 
vacate the Judgment entered and overruled a stay of mittimus for 60 
days, with bill of exceptions to be filed in 90 days. Neither bill 
of exceptions nor report of proceedings are, howe /er, found in the 
record. The matter is before us on the common law record. 

It is contended for reversal that the information failed t© allege 

any crime whatever and tha.t the court, therefore, never acquired 

Jurisdiction, section 6 of Division 11 of the Criminal Sode provides 

in substance that it shall bo sufficient if the offense is oiiarged 

in the terms and language of the statute creating the offende, or so 

plainly that the nature of the offense may be easily understood by 

the Jury, This information under this provision of the statute would 

seem to be sufficuent, since it charges that the offensive matter was in 

the def enfant' s possession. Defendant, however, relies on McNair v. 

People , 89 111, 441, 444, where it was said that notwithstanding the 

statute the majority of the court were of the opinion it was necessary 

the 
to set out the supposed obscene matter in / indictment, unless it was in 

the hands of defendant or out of the power of the prosecution or too 

gross to be spread on the recoi^iB of the court, in either of which 

cases the existence of the fact excusing setting it out should be 

alleged in the indicjtment. The indictment in the MoMair case was 

for printing and giving awayaand having in possession obscene matter. 

Here the gist of it is for possession with unlawful intent. The 

oases are, therefore, distinguishable. There was also in the ^icNair 

case a motion by defendant to quash the indictment. No such motion 



i 



.s 

al ^rxdarafillxToo o* S-s jB«;t£[»a asw *flB5fl©1:»5 forts tJ&orted'ae ajsw ;tneiBsB«l 
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oe 'lot mfSLtti!'"' ' ■ V '*'' "^ balimisTro jbnB &ei»?xi» ^nesafeiit exltf ai^aOAT 
XIM 'iftii*!*?; .ov--.-- ^'-^ f'»Iit ec o;t acoJt^qeoxs to Ilitf diiM ^nx&b 
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.BTro&«rtf IraX nojsBroo ^sii at bis siotscT el *i&i:iaii erf? .BTOoei 

«-^^rr.. ^- vs,>r,'-v -.->•* ...Totfli SdJ-^TSjClif Xal31»T»t lOt li»fifS«*nOO el S^I 

^bAAi-vo.^, ^i,.;-., 1 snietftTtikift ^ttuob mitt i^dS bn& ifrvQtzdx eaiito xti& 

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-;.* I© flol^tj-osaotq a£f* t© lewoq aifjf to rf"!/© 10 toAba^lsb to a^aad! aif* 

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noia^offi rfoila oW .tttWffiroUiiil aii;r iiaai/p 0* S-iiiibnetsJb ^tf floWoia a ©aa© 



3* 

appears In this record. Defendant cites people v. Brady« 272 111. 42£, 
as quoting MoNair v. People with approval. An examination of the case, 
however^ discloses t'nat the citation ^as made in the dissenting 
opinion filed in that irase. In this matter we are impressed by the 
remarks of Chief Justice scates in CannadJ v. igeople, 17 111, 158: 

"These great niceties, and the strictness in pleading, 
should only be countenanced smd supported, when it 
is apparent that the defendant may be surprised on 
the trial, or unable to meet the charge or make 
preparation for his defense, for want of greater 
certainty or particularity in the charge, " 

It is undoubtedly the law that an Information or indictment which 
fails to charge a crime will not sustain a Judgment against the defen- 
dant and will he reversed on writ of error, people ^v« BxiffOb 318 111* 
S8a, However, we hold the decision of the Supreme Court in the cn'.Be 
of Fuller v. People, 92 111. 182, is decisive here. It v,as there held 
an indictment charging defendant had in his possession a certain 
indecent drawing was sufficient* 

Defendant also argues the information is defective because It 
fails to allege defendant had knowledge of the obscenity of the books 
In his possession. On this point he relies on Moens v. United states, 
267 Fed, 317, where the court said that under the indictment there 
consld-red a blind man, having pictures in his possecsion without 
knowledge of their nature and for the purpose of exhibiting them to 
others, could be convicted under the infonnation, which was, therefore, 
held defective. '.7e are inclined to the view that even a blind man 
wo\ad not be presximed to be ignorant of the nature of the books which 
he bad in his possession for the purpose of disposing of them to others. 
However that may be, we hold that the lan^juage of the information in 
this case does in effect allege knowledge on the part of theiadefendant. 
In that his unlawful act is expressly charged by the information to have 
been done «int«ntionally«. If his possession of these obscene books 
was intentional, then he must have had knowledge or scienter. The 
remarks of Chief Justice Soatos, already cited, are again applicable* 



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67^ oi n©Xd-assn»lsi adtf x<^ Jbsjgrurfo x-^aosiqxa aX to& lutwAlmj sitd f&df nt 

aJtoocf 8n@oacfo da^ii^ to nolBseaeoq aXd tl m^xll&aolin^Sal^* '•M^ floecf 

9/IT .id^aaXoa mo fgbBlvoiai bad 9VBg[ inum ed asdi ilaaolitntal aav 

^«nXd^oXXqqA al&^& &^m %beitv xhueila (Bo;S'J8oe eoJiiatsl, laXdO to asCiBina*! 



4. 

Defendant also contends the Judgment against him should he 
rerersed beeauae the common law record does not recite that he was 
duly advised of his right to a Jury trial, and says that the court 
was therefore without Jurisdiction to sentence him. Tnis is an 
unusTial contention to make on this record. The abstract shows that 
on November 18, 1942, defendant pleaded not guilty and demanded a 
Jury trial; that later, on December 14, 19 2, he waived the trial by 
Jury, We hesitate to hold that a defendant, where the record, as 
herd, shows he had counsel, at one time demanded a Jury trial and at 
another waived it, was not Informed properly of his ri^ts in that 
respect. Every presumption in the absence of a bill of exceptions 
is In favor of the judgment and the transcript of the record imports 
verity. Pulliam v, people, 352 111. 320» The Judgment of the Municipal 
court will be affirmed. 

AFFIRMED. 
O'Connor, P. j., and Niemeyer, J,, concur. 



r>. 

Y.cf IsiTa add- bavtsvs stfi iSr-;.; ^ 3(J«»ee<I no xi%iAl t»iii il&lti '^•xul, 

:J-u.xi;t xii st^ii^li sM to xln^qo'tq h&anotnJb 'Jon bbw ,;fi BstIaw larfJoiis 

lAqloiRXf^ 9^t %& ia®s^i>ai ad's *.OB.l >.XIJ S3S tftXfllH&'i .v s usXIX^gL .^^^-s^ 



ii^f\;?r:r^^A 



,'XMOiieo <,X, ti^t^Sf^-iK l>iM ,.1:, ♦<?: <toiinoO*0 



42597 



ARMIN F. HILLMER* et al,.. 
Plaintiffs 



CHICAGO BANK 01^ CQi-i ERCE, an 
Illinois Banking Association, 
•t al., 

Defendants^ 



320 I.A. ^ 




ARMIM F. HILLMER> §EORGE LSONARD 
and ao^DON LEONARD, Go-partners 
Practicing Law as LeonaM and. Leonard, 
and GEORaE E. LEONARD, 

Petitioners-jkppellants, 

T, ^^_^^' 

KARL E, 3EYFARTH, 

Re spondent- Appellee. 




APPEAL FROM 
SUPERIOR COURT, 
COOK COUNTY. -^ 

.1 y/ 



I 




MR, JUSTICE MIEMEYER DELIVERED THE OPINION OF THE COURT. 



Artaln F, Hillmer, plaintiff, and George (E. ) Leonard and 
Gordon Leonard, co-partners practicing law as Leonard and Leonard, 
and George E. Leonard (formerly of the la,/ firm of seyfarth and 
Leonard) appeal from ©rders of the superior court of cook county 
entered October 29 and Decemher 15,. 1942 denying successive petitions 
for an order directing the receiver herein to pay to one of the 
petitioners one-half of certain sums theretofore allowed as attorne^-^s' 
fees in this case and held by the receiver under certain orders of 
court. 

The petitioner George E. Leonard and respondent Karl Edwin 
Seyfarth were practicing law under the firm name of eeyfarth and 
Leonard until July 1, 1:)35, when by agreement the partnership was 
dissolved. Provision was made for the respective partners t« render 
services in the unfinished cases and there v/as a requirement that 
each pay to the other one-half of the fees collected, render monthly 
statements and permit examination of the files in any of the cases. 



oas' 



( 






, . -'T/OO 









• :.... -i^OO'tO .. _-uaoihd 






Xtauoo ;iooO lo .Iijjoo noii^qisB edi to Bisino bscxI l»6qq& (ManoeJ 
9si^ to 9£jo ot %&q oJ- fii9'-»ii t«vi»osn[ 9dt gni^oo'iiJi lefrio as lol 

Sufi xf*T:st"i»8 to e„ :- . -xl Bii;^ leAm; w«I -^nloXteatq •i»w xi;fn«lx«8 

'x»£>flfT o« s^'i^fllijaq evld^aeqsen ftilit lol mbrnm a^w noiaivoi^ •bavXoaalJb* 
tfj3ii;r ?n»aet iwpei £ ejB» siario*' 6fl« aaa^o £>eifaiAi:imr en;t ni aaeiviet 
XXiiJnora lefinsi tie*oelloo »«©t eif^f to tl/sd-ano T9d*o arfi^ otf^ x&q rCo*a 
,»a^j£0 exid' to it^A ni nslit pt{:t lo nolis>.iila^Ji9 tltsn^a E>iia atrracaa^A^a 



2. 

This court hae held tJoat this agreement did not terminate the 
partnership and that each partner retained an interest in all cases 
handled by the other. ( seyf arth v. Leonard , 516 111. App. (abst.) 139.) 

A dispute having arisen, an order was entered August 7, 1940, 
directing "that the Receiver hei*ein (and any successor thereto) retain 
and hold any sua or sums of money allowed herein as attorneys' fees to 
Seyfarth & Leonard, seyfarth & Atwood, Leonard & Leonard, or to any 
member of said firms, until Karl Edwin Seyfarth and George Edward 
Leonard agree as to the division of seld fees or until their rights 
therein under the agreement to liquidate the law firm of seyfarth & 
Leonard have been fully adjudicated by a court of record and until an 
order be entered herein authorizing the payment thereof, « Thereafter, 
by orders entered September £3, 1940, January 22, 1942 and July 29, 
1942, fees totaling approximately 040,000 were allowedaand ordered to 
be held by the receiver tmder the conditions of the order of August 
7, 1940. By agreement of Seyfarth and Leonard f 1,900 was disbursed, 
leaving about $38,000, the subject of the present controversy. 

March 28, 1941 Seyfarth brought suit in the Superior court for an 
accotinting and discovery, alleging his full compliance with the 
liquidation agreement of July ^, 1935 and charging Leonard with defaults 
in his obligations thereunder. That cause is pending before the master-. 

May 7, 1942, the plaintiff Hlllmer filed a petition reciting the 
entry of the orders of August 7, 1940, September 23, 1940 and January 
22, 1942, and claiming that in the action for accounting mentioned 
above, Seyfarth admitted the right of Leonard & Leonard to one-half 
of thev fees held under the two last mentioned prders, and that the 
withholding of the fees will unnecessarily and unduly impede the 
prosecution of this cape. Respondent seyfarth answered, denying 
Hlllmer 1 8 construction of his complaint. 

Seyfarth procured the appointment of a receiver in the accounting 
suit to take possession and hold certain fees specifically mentionr d, 
and such other sxuns as have been collected since May 2, 1941 or shall 



♦s 

«d| s^amlt&'i^ 3"®H JbJt^ ;ffi®aa?»^3B aM* i&di fcleri ustd ^tj/oo bJWT 

,XII SX£ «^2.Bgo2i~ -^ S*:i^lXif - '^^ ^^'^ '^^ SaXfiAad 
tOJ&'Ci' tf rtssj-gifj /;3":iitn© siew i&Mo ob ^naai'is gfliYAri «d"aqel£> A 

' r^trsoid^ as xsi^&fi l>a»ioXXs xB£i&si 1« Sfiure to ffli/a -^its. tloA &na 

iJi/^iarM i^iofeB hBB .Sl«H^^1|;«8 flJ£wl>5S X-iaa Xi^m/ ,aja*rtl Mas lo letfatta 

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. .;; to lel^o s/i^ lo 3ii6l*iJ!>noo &rii nsbmj lerrXsof^*! add" x<*" bled »cf 

©.{i;? Xqffloo IlL'1 Bid 3fli^-eiXfi tTjisvooaifi fen^ gnia-ftuooo* 

. rK^d-aefi! su:? I'iioted •v:)rili>iitq aX ©atf*© J^riT .neftmis^^ild^ aiioXtf'iJsiXtfo aid ci 

9dS t&tit bfui ^s'l^inq J^dnol^tndm tBMl evi 9tit ^9bau Mad asel ved^ t« 

•>6»qffll xlisiitiij hiis ^Xiisaa^ooiraii XXXw a©©l »ri# !t« gnlf)Xoiirf:fXw 

^i-\t«e£t ti)©T:«wafl« xl;}^'x«txa8 ^fisMoqasiT .einAo aXriJ lo noi;tut)«s<«q 

.;fniBXqmo« ainl lo Bol^fotn^fafloo e'lenXXil 

t i -■: : Jl niniirio bled bcm joclasseaoq ois^ oi ttism 

LlAda 10 X>^^i ^' x^^ &oalB l>«^aeXXoo noecf 9WMd && amtra ladto nova Jbcw 



3. 

thereafter be collected by the parties. On appeal that order was 
modified by t.-is court In the above mentioned opinion, filed October 
2, 1942, whereby the proceedings were remanded «v5ith directions to limit 
the authority of the receiver to the collection of the portion of the 
fees claimed by plaintiff, except as to those fees now In the hands 
of other receivers, (the amount in controversy here) who, the record 
showB, will hold such fees until this cause (the a!roounting suit) is 
Ijerminated. « 

October 29» 1942, Hlllmer amended and eupplemented his petition 
by alleging the entry of an order herein for ^7,150 additional fees, 
to be held as aforesaid, and setting out the proceedings. Including 
the opinion of this court in the matter of the appolitment of the 
receiver in the accounting suit. He also amended the prayef of the 
petition to ask that the receiver be directed to pay to him as 
petitioner, or to George E. Leonard, one-half of the fees held by suoh 
receiver under the conditions of the order of August 7, 1940. The trial 
court denied the prayer of the petition as amended and supplemented, 

November 27, 1942, $he petitioners joined inaa petition 
Incorporatingbor referring :^o the former petition and setting out 
order? of November 23, 1942 In the acnounting suit dlreo'lng George 
Edward Leonard to pay to the receiver within five days one-half of 
certain fees oollected by him in partnership cases and vdthheld from 
the receiver. The prayer of this petition is that the order of October 
29, 1942 be vacated and set aside and that, without regard to action 
taken as to said order, an order be entered directing the receiver to 
pay to Hlllmer, Leonard & Leonard or George E, Leonard, one-half of 
the fees theretofiore allowed in this case. Respondent Seyfarth 
answered, asserting a vested conti-actual right in all fees held by the 
receiver herein until final adjudication or agreement as to the 
division thereof. On December 15, 1942 the ehaacelloe denied the 
second petition. From these order* denying the relief prayed for, 
petitioners appeal. 



•S 



©lit lo tnm^tc.Kiqqx, ©ft "- ^ - - - f^ g^i ^rti/oo 8-tri^ to nolxUqo «xi;^ 

. " ' c. : RcW 5;^ Bi3;oiitJL5«oo »ii* lafcoif iavX»o(w 

.; i0i;v> a.' itoi^li'Sq ed? t© 1®Y''S^<? O^^f^ .5«XKa& 3^ltf©<} 
X Sn^alol s^Qnofitt9q sat ,S«^SI ^VS idcfiBSvotJ 

- -' r- '-'••• ^^•- - ' H- 'io iex«'^Q s^T .'itrisoan ©fl;> 

^-.'-.s.eo :-;id* nX J5>9V6oXXa «woao*j«ad3' aa*! Mi;^ 

10 nuX*«!)Xi>irt,J6ifl Xsail XWixw ixin«d nsriaoai 
' "^ ' ^"'- - '.jsoea flO .tosTML^ AcXaXr ii> 

.Xxjeqqii ai«aoid"ii^aq 



Ic ^Xr,il-3nc - 

ti-I^J .,,,(. ' ** ~ - ■■'■ 



4. 

Seyfarth has filed a motion to dismiss the aopeal because, as 
he says, the orders sought to be reviewed are not final and appealable. 
The parties agree that the order of August 7, 1940 fixing the 
conditions under whioh fees to be allowed thereafter should be held 
and disbursed, as well as the subsequent orders allowing fees and 
directing that same be xxx held by the receiver under the terms of 
the order of August 7, 1940, are final aid appealable orders, and so 
our courts have held. People v. Illinois State B ank, 312 111. 613; 
Wyaan v, Hageman, 318 111. 64, 73, petitionei*s have moved to vacate 
or modify these orders by an order fllrecting that one-half of the fees 
h«ld by the receiver be paid to Hillmer* Leonard & Leonard or George E» 
Leonard, Denial ~of the relief sought is not unlike denial of a 
fflution to vacate a final Judgment, and Is appealable. City of Park 
Ridare v. Murphy « 258 111, 365; Keithley v. ounty of Clark , 206 111. App. 
500; Cohn v. Bernstein, 205 111. App. (abst. ) 325. The motion to 
dismiss the appeal is denied. 

Petitioners contend that as t© half of the fees held by the 
receiver and claimed by Leonaj^d as his share, the stipulated alterna- 
tives for payment of said fees have been met, in that Seyfarth by his 
action has agreed and this court has adjudicated that one-hs-lf of the 
fees belong to Leonai^. These contentions are based upon the account- 
ing suit. In that suit Seyfarth complained that comraencing June, 1939, 
Leonard had failed and reftised to render statements concerning receipts 
and disbursements; th<at he had collected and retained to his accovint 
fees in the cases described in the liquidation agreement and that 
one-half of such fees belonged to him, Seyfarth, under that agreement; 
that in addition to the fees fipecifically mentioned in the complaint, 
he, Seyfarth, is Informed and believes that Leonard has oolledted 
ether fees, the amount fl)f which is unknown and cannot be ascertained 
without discovery. The relief asked is an accounting and the appoint- 
ment of a receiver to collect and receive the moneys therein specifi- 
cally mentioned and all otlier sums which may be acoounted for or 



.»XcfsIii«qq."s Bit* - 6«»-»lv9'i «(f o^ ;fifw«oa aienio ©ri^ ^s-^bb ©xf 

l>Isil »v i)j:ifoi3[8 'Sft^f^js*!*^* JfeswoIXfi wf 9t •••i Jdeixfiv i^Jbtui anoXi'JJbiiof. 
bJ snlwoXlA gfe^« taeapaarfCB ?>ii* bh li«w as ttfta-xjjcfaifr ict 

; f?n.s ,Bi6Mc sldj8ii£«<3qi| Ait* X«jsit sna ,0*- i^gwA lo isMo erf..' 

;cI8 .III SIC i^^Q #^^;tg aloiiiXXI .v elgoe^ .Mad avAxl atii/oo i«o 

ad-Bsar oS Iwros? ^©aoXJi ' ^ All SX5 t naroa^sH .v JiftWR' 

.3 »S*^o*C **© MAflO!^ '.'itjfliXIiH o* 5,tBq acf laviaoerE arit x*^ Alltf 

:- to L»Ia9b ellltm ^i. iuoe lailaT: ari* lomXisiflaCI .fnenosj 

^2£i_lJLJil±2. . ©XdjBJLearrca ai I^hb «:fn«K!sSwl /fiiil a a^Ao.sv o^ noiJ jb 

,.:XI 80S t3ttaXn to x^j-' :3Xri7le^ ;a8S .XII SdS t TrfcrnrK .v ar^^i^ 

/:.:J£ (.*a«fA) .qqA .1X1 30S tflie j-saisg .v ncioO ;0C3 

^alnsi al Isaqcs aii* aaimaifi 

( &X0X{ 9 931 axl^ lo tXari e^f aa ^sd^ bna^iieo aienoXti^a? 

~.»ix'sd;^Xa Ba;ffiltfqi(fs exit t9?«c(i aid! ba Mjaao*J xcf biail&lo ba& 'zeviaoei 

alil x<^ c[#nB'$|a£ S&iiS nl ,^$iB iiaecf svsxi aoat Jblsa io tnaer^Bq lol a97l# 

e>ii^' to lIfifl«8flo ifsiiit b^i&olbulbB aM tt'iuoc nidi bOB ^aai^s aj&d noltoa 

-3'ijyoooJB axid" noqy jb©;: anoltcad'noo asariT *frxBnoaj oJ^ anolacf aaal 

»^5SI ^BtmX, j^alort^mmac Xqsoo xlitrrBtxsS *Xw« iatLt nl »*ljja sni 

e^qlaoant "^alm^oeo^ atnott;&;>"a*8 taJbeei o? JbaaJttaT: btm bell&l Jbjsri ManoaJ 

>)'X2Wo«oa uM of bistilAiffi Ms lia^oaXXoo bfsii or ;R?-n9craRitftfaUi fcixa 

'>£{£ itaame&'i^a aolt&bJkUpll adt ai JlM»diiaa g3 aaeBO 9dt nX aasl 

;;Jji©£K©eT8^ *jB£f# leSmf ,d2l'i.®'tt»S ««Ije£ o3' Jbagiiolatf aaal xiova lo llBd-ano 

^ lisXqnoo eilt tU b9aolia9fs ti^lA^itioeqa aael ad;f mi noltib&B al i&d^ 

b$>Si>eLloo B&d bn&no9d i^tit a^railacT bos bmartotal al x^B t^d 

b^alBiiBO^M ad" ttontiBo cma itwofrim/ rX xioJtiia td tauoaz arii" ,aa»t larftf^a 

-^nioqqs arf^t fins gjalJ nurooo*^ njs al btd.BS lailea »dT •x't^vcoaXJi tuodilM 

'^Xoaqa nie'iorf* 8X«nofl! arfjf' avlaos'i Bae toalloo ot laviaoen jb lo *naiB 

10 10^ bB^tiuoooz atl x^Bs doXrfir a«MB rtarfi^a IIa fiuafianoIJnaa xl-tao 



5. 

thereafter received by Leonard In connection with the liquidation 

of Seyfarth & Leonard, and that said receiver hold and distribute said 

money to the respective parties as their rl^ts therein appear after a 

full accounting Is adjudicated and determined by the court. 

It is true, ae contended by Leonard, that In the complaint 
seyfarth claimed only one-half of the fees collected. He is not 
entitled to more and neither Is Leonard* In a partnership neither 
partner has exclusive right to any part of the joint or partnership 
effects until a balance of accounts is struck between him and his 
co-partner-6 and it is ascertained precisely what is the amount of his 
interest. Morrison v. Austin state Banle , 213 111. 472, 480; GunninKham 
V. Cunningham , 303 111. 41, 45. By the liquidation agreement the 
parties sought to anticipate the final settlement toy allowing each 
to receive one-half of each fee as collected. Had both parties fully 
complied with the liquidation agreempnt each would have received his 
part of each fee, less proper deductions for eacpenses. Neither party 
Intended that the other could withhold division of fees collected by 
him and insist upon one-half of the fees collected by his co-partner* 
That Seyfarth did not so intend is shown by his position here and in 
the accoxmting suit, where he asked that the receiver take p«esession 
of all, not half of the fees^ and hold same until full accounting and 
adjudication. Leonard took a similar position there and in this case 
by insisting that, because of alleged defaults by seyfarth under the 
liquidation agreement, he, Leonard, is entitled to have seyfarth' s 
share of the fees retained by the receiver until final adjudloation 
of the rights of the parties. So far the record discloses no defaults 
on the part of Seyfarth, The orders of November 23, 1942 in the 
accounting suit show the withholding of fees oolldcted by Leonard^ 
and there is neither allegation nor proof of paymentbby him of the 
sums directed to be paid to the receiver. The offer to do equity is 
conditioned on the court supplying the money by granting the relief 
sought by pBtitioners, In this state of the record we cannot hold 
that Seyfarth has agreed that Leonard should receive one-half of the 



■■.UiB^oni*x&q to cfr iof, e-i<;t I* it&q ,:,;.; oj jx.r^i'x 8Yia«Xox» CAXi •rsix;fi«q 

-;fi«»*a<:l ;2i©tn:t^» ai BtaiiOocy& to dOJS&Xjsd s Xi^m; atoolls 

alii io 5;j.tiOiia sii:t ei f^v Tr.X«el6«nq MfliijJisosB ai ^X &a& 8T»frirri5q-o« 

r^ xxmifO ;08i? , ■ .1X1 SXS ,;^ ^ «;tai^^ £L £ »^aj /4 .v noaii*£oLi .;fa»T:»i:xii 

©ff^ :)TjejBesis^ fioX^I-jsjblujB'iX «£i? ■ . . ' .rjll COS t jajaxxsfli . .'/ 

iior-9 gjsXwoIIr-, •'C^ ^fie:. ^,*cTXoXS'fl« o* *dguoa saX^fXiiQ 

Y.a'.ui: saiJnfiq d;fO€f b&B. ,.isic^siXGo aii asl xioBe ^o IXart-eno aviso en tif 

sla[ i)©vi9i>eo; -^ s© i^^aajsas'igja jsoi^jajbieplX aiStf x£^iw bBlLqaoq 

\tt&q isdJisVi .asaiiecpce 'iol auoitatf&aX) ^«q«iq aaeX ,ael xface to i^Ji<! 

i bBto&lIoo 8091: ^o aotBt-^rlb MocfeiJ^i* AXuoo lexa'C ©£fJ ^zdt be>bae^al 

. laitsq-oo bM xd be^oBllQQ as^sl mii to H»d[~eito acqu jtaiani 6iia «ixi 

ill ^^ri-i ^'imi aoltl^o .cf tasods fsi fiiiaJni ea *ofl bib iiti&\%9B i'atlT 

r:ciesns8©q fi.7.':^;t T3vi«si-2 eriJ if.^irfd" .?»«3is - i.ya -gnltDssoDeB ari* 

&Xft Snid-mroooa Ilw'i litna ©ia^a ' .^ ^so;:!!: 2x;J- 'io tXad S"Ofl tXXjs lo 

aaso aXrfrf" wi d^ aeltlBQq •a.lJjijS - ^aot^AOlbulbe 

abmj d^ z^ aifXw^1:df) SasgaXX/i "io asi/ioai «J~..:r gxild'aiafli xa 

• ' dtf'rrjatxaiJ ^v-oxi o? .&9X*X;tfi9 ai ,Jfe^j:mos < v^nasieais^ nolitjaJbiypiX 

.aoJl*£oiA£ttJ->« Xaflil Xl^ny Ttafviaosi 9d<t ^cf ^sai^»T[ aael •xl;f lo a^ada 

aJiwfllafc an goaoXoaXX* i**!©©©-! *d^ *tA- o ..gsX^naq oitir lo id^x^Xt ad* lo 

ari? ni S^eX , '-.sJSao atfP •Jf^ial'iaE tc Jiijq od* nc 

tJEwanoaj \<i J&ojs©j.Ic; .o •^ittliXasifiii'iw ad* uroda Hub s^i^auooox^ 

ad* !ro Bid x'^<^^nmxc. Tois noita^aXXa i9d*ien ai arrad* bat 

■ fypa of) • ad? 0* X^i^'aq atf 0* j>f»*09niJb aiRva 

j.eii ^ B-i-^^rusx'^ -itu i^<j|r.o® sdw satiXqqi/a trtcroo ad* no 6«noi*iJE>coo 

M(?ji comx^o ' i;.-.oa©«x ©d* 1© •*«*« aid* nl .aianoi*i*aq xd tfrf^woa 



6. 

fees wMle hie* Seyfarth«s share is being withheld. Neither can we 

concede that it would he equitable to permit that disposition of the 

fees. 

Equally untenable is petitioners* position that this court has 
adjudicated Leonard's right to one-half of these fees while Seyfarth's 
half is being withheld. In the opinion on the receivership order it 
was expressly said: "We cannot In this case order disposition of the 
fees held under court order by any receiver in any other- case." That 
statement expressly excluded any adjudication as to the fees held by 
the receiver in this case. Furthermore, from the fees to be collected 
by the receiver in the awcounting case this court excepted "those fees 
now in the hands of other receivers, who, the record shows, will hold 
such fees until thlg case (the awcoxmting suit) is terminated." 

V/e do not find in the record any change of circumstances which 
would Justify a modification of the order of August 7, 1940, or any of 
the subsequent orders based thereon. This is the tuird appeal in this 
and the accounting suit from orders relating to the fees now in con- 
troversy. The accounting suit was started more than two years ago. It 
could have been concluded smd the rights of the parties adjudicated with 
a full hearing within a few months. Until the final determination of that 
suit the money held by the receiver should be retained by him so that 
if either partner has wrongfully withheld fees the other may have a fund 
securing him against such wrongs. 

The orders appealed from are affirmed. 

ORDERS AFFIRMED. 
O'Connor, p. j., and Matchett, J., concur. 



ir 



, a n ©^ 

B»niiJ3l'i4>S ©Xiftw aa«t ©B©jcid; "to lX*4ct''®-C<> o# ;trfel'Y. s'lrrAnosj X)»:fi»oll)ut6-» 
*i t9iyio qixiatevjteoaT; siS^ ixo fjolxutqo sits ._ . IsiiffJ-lvr ^rtlacT si ll&d 

jjaciT »4»8AO lacCt© TSfiA ai t^ryX««e^ iffla ^d t^Jbrto ^wco TBhsm Med a«sl 

Yd i>X«ri aael «»'^t o# as 0oXiJ'soiJfeii^l»d 'ppa Jb«.D»Xox» TtXsa«iqx» 3'neiae;tix^«=t 

i3«*©©XX09 IKS' ei „v. .. sjti;r aso-xl »»i0Jsn&4*T;w'5 •aajso aXricT ni isvlsos^ ©xiv 

a»»t «»cuc[;f» S»jf<5&©x9 ff^woo aXdJl" ? .-: n ^saXi^ni/doi*^ arid" ni ievi»o9^ 9dt x<^ 

Mori iXiw ^ao4B ^^oas^x ^ ^cs:..,. ,„-.-/Xfloa«i 'Xdil^fQ lo afixtari sri* al won 

« ♦fe^d'jauiiiB^e;^ «i (;I^XJa;a sfll^nsfOp** 9rf'^^ ^i^eo iMJ- XWnw essl rfoifa 

dfoXiiw sssisiSifaiatfs^X© to «gp-ad(p •^ii« JErcocS'i -- ..X baJtJ ton ob eW 

to xa& le *OKX <V 3-aHsixA to 79i>rto «4iJ" to noXdsoXlXJ&oiH & \tliBUl bluow 

8X4^ ixi £&«scf/3. MJu-? ad? «|. aXxiT .•Gosriafi* J5«Q,e<f B'x©f>io itneifpaacfwa ©ri^ 

-aoo xiX »ox3! a©9S eii* ot T^al^&lot at ©Mo ffio-rt 4ft]|B ||aX;fm;ooo« adi* ba» 

,Oi9J3 a%»a\; owS fiaii? »ioie i>9^^t&^B aaw JXira srUcfju/oooa orlT .Tcaianr^^tf 

-jXw X»ad^s9X6jJt^ii Balt'xjaq siii^ to t^xl^Xt aill .bGua £r9£>jjXo£[Oo naecf evAcf l>Iuoo 

;rjariJ 10 noX;t^Xin«k*si> l^iWi. mH XitfiUJ ,ail^noffi wat a aldttv z^nliBed lluTt & 

iAAi oa mM x;ci lisaX&^arx ©4 6Xi/of£e "xavXaoei «£&f "^cf blnti x^Aoin ad;f d'i&a 

/>m/'^ >, ^vf\rf v;-=^ 't>5i^'r;o ©r{;J 899*k Sleiiii.' iw YXIi/tanonw 6&d lan^fijjq imiti9 ti 

.egao^nr rioira ifenX^^is 0Xr( sniiireaa 

,^.. ..'-i:;^ ... ■:;.3 fflOTt ^«^./.fl<■r^,R c^T9/>10 ©XfT 

«■• vr-rrco , , ', ^ ^ rtprfriitrr;:'.' FirfA ^^ , i-XOnnoO*0 



320I.A. 362' 



42611 
-ROBERT MEGAHY, 

THELMA MEGAHY, 




.^ 



.^' 



Appellee, 



Appellant, 



APPEAL FROM / \ 




MR, JUSTICE NIEM2YER DELIVERED THE OPINION OF THE COURT, 

Defendant appeals from a decree of divorce finding her 
guilty of habitual drunkenness and dismissing her counterclaim 
for separate maintenance. 

On defendant's demand the case was tried before a Jury, which 
fo\ind against her. This verdict was "binding upon the court and can 
be set aside only in accordance with the practice in cases at 
comson law. Teal v. Teal, 324 111. 207, On the question of separate 
maintenance it was only advisory. Berg v. Berg, 223 111, 209, 



The parties were married November 18, 1939, and separated 
March 23, 1942, The plaintiff testified that from about a monthn 
after the marriage until the separation defenoant drank a pint or 
half a pint of whiskey a day; tiiat he often saw her drftak, smelled 
liquor on her and found empty or half empty bottles daily; that he 
knew by her actions she had consvimed the liquor. He also testified 
to intoxication on occasions, Including drinking for a week before 
they separated, Mrs. Rich, in whose home the parties lived from 
July \antil December, 1941, testified that defendant came in intoxicated 
and abused and cursed plaintiff, and that witness found bottles in the 
room xinder the mattress and in chiffonier drawers. Dr. Keraey, who 
smoothed the troubled waters after numerous quarrels between the 
parties, testified that plainti/f wanted defendant to stop drinking 
and defendant insisted that if plaintiff could spend money on 



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>;?isii5gs!e ^o acl^BBup Bdi ao ♦VOS -III *SS t^ggal •''^ X^el ,m&l xiomiao© 

i)eIXsssB ^iiuSi-b -lari wjsa nerf-'io ©il ;ffifi;f XXfiii e, x^^-aXc(» lo *cXq * tl%^ 

uti isidi ;xXXfil> BBlitod ■^S'qiEd lljari 10 Tj^qtus 6xui<;l ijrxjB i«x£ ao loupix 

hai'll'i&eli <mL& 9H .^otrpiX sdii Ssmji/anoo ^scT si(1b cnoi^od 'tad xA wsof 

onolscf ^8©w is %ot gisJbiniiJb snllwXonl ,«flolajBODO no tioliootsiOiBl oi 

noi'i l>eviX e^Xd'ijsq 9sii Btaod sacdw oi «xfsX/i: *sim «JE>e;t£Taq3a x<^^ 

6esffloJbco?ni ni eraao d'n,al>xielGi) 3"jari* 6«ili:fae* ,X^£X ,i»cfja«o«a Xi*fl« \LuJ» 

S'Ij iil esXJl":Jotf £>nirot iaexi-iw isMit bs%& ^Itiitil&lci feeeijjo 6n« JbaaucfA Aixs 

oriw ^x«Bi .BiowaiJb nwlno 1 ilrlo ni 6n« aaaiJita* ad* nai&mr oeov 

aiicT natw^ed Bl«<x'i0i/p ^iso^.emua i^i^A aia^aw baXc(jJcn;t sxl* Jben;rooaa 

Sxiiifliif) qod^a o* d^aeJbnetef) fiaJnaw lllcffiiaXq itexl* ftaHtl^aa* taolJiaq 

no Y<>ncfiz finaqe JbXjJoo m;fflXaXq ^i. issii fia^aiani ^na&naleA Ana 



2. 

photography she could afford to have liquor in the house; that 

defendant said she liked to drink at times and saw no hann in it. 

Defendant contends that this evidence, standing alone, is 
insufficient to support a finding of habitual drunkenness, and further- 
more, that it V7as overcome "by testimony on behalf of defendant. 
Habitual drunkenness, under the statute, is defft&BeL in Dorian v, Dorian^ 
298 111, 24, and iohards v. Richards, 19 111. a p. 435, cited by 
defendant. Plaintiff's evidence meets the definition set out in these 
cases and shows that during a period of more than tw© years before the 
separation defendant was unable or unwilling to refrain from the 
habitual and excessive use of intoxicants. 

In opposition to the testimony on behalf of plaintiff, defendant 
denied excessive drinking or being intoxicated in the home of Mrs, 
Rich, she substantially agreed with Dr, Kersey's version of the 
conwersation stated by him and testified that she worked in a currency 
exchange and as laboratory tf.chnician until iiarch 1 41, a year before 
the separation. The owner and an employee of the exchange Jtestified that 
her work was satisfactory. These witnesses, the lady in whose home the 
parties lived from December 1941, to March 1942, and a friend ato whose 
home defendant visited, all testified that they had not seen defendant 
intoxicated. The Richards case, cited by defendant, holds that the 
use of intoxicants need not disqualify the person charged with hafeitual 
drunkenness from attending to business during the particular portion 
of the day usually devoted to business. This is in accord with the 
better rule, 17 /jn, Jur, , Divorce and Separation, sec. 137, 

The Jury has accepted the testimony on behalf of plaintiff and 
rejected that on behalf of defendant. Their verdict was binding on the 
trial court and is binding on this court. It cannot be set aside 
unless it is manifestly against the weight of the evidence, Stafford v. 
Stafford , 299 111, 438, The chancellor, who st^w the witnesses and 
heard them testify, has approved the verdict of the Jury, thereby 
holding th£.t it was not against the manifest weight of the evidence. 



•s 

_,._. ;3aiJ0ii ©.dj xiJt loirpil ©v^ o'^ Molls Muo-O axis •^riqjs*5S0<^*'^<I 
,*I fii ispi/iri on WiiB fcas esxuiw ;J*i Ajcilnb o^ b9HS. «xfa l>lisa SoAbrtrnt^b 

X<:1 be^^lo ^^6-. , „ ,1X1 GI ^giyaetoiH .v eb-xa^oin l>n& «J^S .III Ses 

,j5J«^oix©d^iii lo 981/ «T±a8«oxe fini XjBiJd"Ia'sd 
tsmhnstBb ^ttlinl&lq lo IXaddd ttO xaotatiBsS ^dt oi aoi^lsoqqt nl 

.■:.z...\ to QSiod e :* n.t hrtzolxoinl ;§flisd ifi ^niirtiifi 8vl3S«GX© b9ia9b 

■*l"3:i*8*t ft3aitii{o3s;9, S-^r" v,:'Xqxa6 iis Aij^ -*£»ii*'C siif .n.oi^fiiJt'q9«' •rid 

:faMSm9t9h fits eg JoiJ .Jusxf %ssXi t:&dt s>Bi\t^Bi>-$ il& ^Bod'.telv tf'ac.Twf^** ditiodl 
X^ffj^ligfarf rfvf - sdj x^^i^wpftil) #Ofl i^seit Biti&oixotttl to •»««; 

.S*'6.;. , t«oitit*i*qsg baji ©oilDVlcr (♦TuT, .m^ Vi ,9Xin: i^tiBd 

©ii:? no saXI)nX<f ssw a^oXfii^ fisrfT ,i"na5n©lel) lo lX&rfs«f ao *axl^ Jb9lo^t»<x 

oiiiaA ;f®g 9d' crofirtSs^ .twos teirftf- no §nli>nl<f eX J&ns tfrtroo Xaiit 

• ' ^ ot't^^^ ,©oa«>£iXv« an J lo M'^Hv ^dt ;fani«sa YX^aslXmua al tfi s«»Xfl» 

,80fi«i>Xv© Oild- !• iTtsiew tl99\Jttia& 9df ^JiBOlA'S^ ton sztr SI Jsift grtiftXcif 



3. 

With that holding we agree. 

Neither party offered any substantial evidence as to any 
charges except that of the habitiial drunkenness of the defendant. 
Having failed in her defense to that charge, her counterclaim for 
separate maintenance necessarily falls, as her drunkenness is legal 
Justification for plaintiff's refusal to live with her after the 
separation in March, 1942. 

The trial court did not err in the rulings on evidence 
brought to our attention. The instruction complained of is not 
erroneous. It ap ears an order was entered directing plaintiff to 
pay |50 as solicitor's fees and expen-es. There is nothing to show 
that the alleged violation of this order was raised in the trial 
court or that any other requests for alimong or solicitor's fees were 
made in that court. The trial court did not err in failing to make 
further allowances. 

The decree of the supe ior court is affirmed, 

AP'KIBMED. 
O'Connor, p. J., and iiatchett, J., concur. 



c 

son si "Sto i?«fliBXq«T0!5 isoJtiifow'xssru; a.'i .noid-nei"^^ 'xiro od" Jdswond 

JLsI'ii- ed.^ ni bQulai saw ^sMo airfd- Ic itol^aigiT 6«a©i;lJB exJif iai^ 
^&» o^ ■^nlltT.l nl *mB toti SiS ^t'xijoo LbIi* ©rfT .^-iwoo tArtJ iii oMa 



.tA.::'.; ,. iHBiio^^^, bOQ ,*t .'I tionnoO'O 



42624 



320I.A. 363 



DOMINICO SELVAC-GIO, 
---^ Counter Defendant below 

VINCENZO MIGCi, 

Counter Cl84Hiant below, 

and ROSA MICCI, \ 

Intervening petltidngr and 
Counter Claimant bfloir*, 

JOSEPHINE SELVAGGIO, X X, 
Counter Defendant below. 



DOMINICO SELVAGOIO, 



! 

) 
) 

/! 

) 
) 
) 
) 
) 

) 

) 




APPEAL F 

SUPERIOR COURT, 
COOK COUNTY. 



Appellant, 



VINCENZO MICCI and ROSA MICCI, 

Appellees. 



MR. JUSTICE NIEMEYER DELIVERED THE OPINION OF THE COURT. 





Plaintiff appeals from a decree dismissing his complaint asking 
an accounting as to the proceeds of a note secured by tr-ust deed, 
and sustaining a covinterclaim for foreclosure of the trust deed. 

In 1930 plaintiff was building a six room bungalow on a lot 
in Chicago Heights which he had purchased in 1924; he was a shop 
worker, unable to read or write English and unfamiliar with business 
transactions; he needed money to complete the building, and 
defendant vincenzo Micci, his friend and co-worker, also unfamiliar 
with business tranekaotions, agreed tomloan him $S,500, gecxAred by 
trust deed on the property; they went to a lawyer, who drew the note 
and trust deed bearing date October 1, 1^^30; same were duly signed 
and the trust deed recorded; Micci was named as trustee; plaintiff 
worked on the building, ordered all material, paid certain laborers 
and materialmen and sent others to Micci for their money; the 
building was completed in the early part of 1931, 



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.THuoo aRT TO HoiKi^io aHT Qa>3Svijao HSYaj^iiii aoiTsux, .m 

.&»©l> fsind' 9il? 10 siwa do QIC'S 101 Blaljrj^^mroo b sninJLB*8in3 boB 

Jol is no woI«stttfd moot xla 3 gnlAIimf bjstf lllialAlq 0S5I rtl 

qojcia b qait erC il>S^X ni ^^geuioii/q £)sii «£l rloXdw i^fffsieH o^oixlO al 

88»nlB«tf xlJiw TalXifliBlmf ina cfellgna 9*liw ««> fcjB©i ©3^ elcfjjxatf ^isitow 

Jbixe t^HiMlucf d£J[;f Qt9lqm<>o ot x»noa b%bBBn »i{ inaolioABtm'ii 

tBlZlia&tmj oaXjs tiaJtiew-oo iiflia bn^ltl Bid (iootM osnoonlV *ri£i)ix«t»Ji 

X<i benuoBB ^00i5^Zf. mid a&0Xffi»;t bt9TSi& x^noltojtknaii Ba«ni8£rcf d^iw 

©i-on arl* W9il) orfw ^io^bX a oi inew ■x;erf;t ;x*t9qonq $£1^ no b9Bb SBtni 

fiangia "^Xi;6 ©lew sisjsa ;0£'^iX ^X tsdod'oO si&b gnXiBscf JioeS d^Bxrt* Jboc 

^\ltal&lq iftsS^uni ba betsian sbk IooIja \tiBbnoo9*t bo9b tBin^ Bdt bnA 

aiftiocfaX ataiieo bl&q xlsiltsiBm 11& b9i9b'xo tanlfiXlwcf 9d^ no bvitom 

ed* ixBttom nl9d^ lol looUi ot Bi9xl;fo ^nes briA a^alAliB^Mi baa, 

•XSCI lo itsiQ rXiaa oriJ ni f>a3^»XqfflO0 aMr ■Aulbllvd 



2. 

Plaintiff has paid defendant $2,631.25 on account of the note. 
May 1, 1941 he filed his complaint for an accounting, alleging that 
the amoimts acjrually paid by Mlccl were considerably less than 
(53,500 and that Mlccl had failed and refused to render an accounting, 
etc. Mlccl answered, alleging that he had paid out the full amount 
and denying that he had failed or refused to account. Later Rosa 
Mlccl, his wife, was allowed to Intervene, Each of the Mlccis filed 
a counterclaim, alleging themselves to be the joi it owners of the 
$3,500 note and praying for the foreclosure of the trust deed securing 
the note. The matter was referred to a special commissioner, who 
heard the evidence and made a report finding that iil[lcci had paid out 
for the use of plaintiff in the erection of the building the full sum 
of $3,500, and recommending the dismlreal of the complaint for want 
of equity and the foreclosure of the trust deed. 

Plaintiff called as a witness the head of the lumber company 
which furnished material for the building. This witness testified 
on cross-examination that Mlccl had paid him SI, 570 on account, a 
bank book received in evidence shows the withdrawal of that sum by 
Mlccl at the time of payment. The tota3) bill was |1,867,74, aid the 
balance of $297.74, evidenced by a note signed by plaintiff and Mlccl, 
was later paid by plaintiff. Mlccl testified to the payment of tl,327 
to other mate ialmen and produced signed waivers of lien from them 
reciting the amount of money received. In addition he produced 
receipted bills covering attorneys' fees f-r the preparation of the 
trust deed and note and for Insurance, aggregating $119,60, He 
testified to payments of smaller amounts to other materialmen and 
workers ooverlngvthe remaining ;^483.40» He produced a statement 
prepared by him in the Italian language showing the respective amounts 
and the names of the parties. No claim Is made that any of the persons 
or companies paid had not worked upon the building or furnished material 
therefor. None of them has made demand upon plaintiff or denied 
receipt of payment, iiicci testified that plaintiff knew of all the 



edt ^o a'isiwo t; lot ^^^ ®^^ <^* »evXeaG?«fi;f SnIaaXXja .alsioiecfntfo* « 
gniiwose JS)89& iaui o s'xwaoloste'i e£i# -xot gnl'^iJtrtq bsm 9iGa 00a,S| 

HjJB IXi;l silcf •gnlbllisd 9dtf to aclio9^9 ea* oi l^lJiilalq lo aau 9£iJ io!t 

in^-x lol ^niiilqffloo »il* 'ici Jjsa :iiraI6 «ci3^ aiilJ&a»«BB©©®T: ficB ,003 ,60 la 

.fcaofi 3"a«i3' ©di" Ip ©«tW8oIo»^ol arii^ fens Tt^-ii^P* T^o 

JE>«i"tl*8»? aasn^iw aJUiT ggnlMlwcf 9tit tot l£lio**iB Aaxfeiiraol riolxfti 

A t&mscotf^ no OVd^II aiil bl»fi l>«<i 4»«ii^ *^* noWjealffliJXft-ssoio ao 

•Z<3 Mira *iJri* ^o levaibdilv sd^ swoxla eoflsSive nl Jbavieost ioocf loatf 

d£l? bns ,^V,TdS,It saw IXM ts^ot 9£lT .^nsmx-sq 1© effil* eiiit #s loelM 

itaom bna lli^aljela ^o' fians^ia s^on b ict 6©oit©i^iva ti'V.V^S^ lo ©onalstf 

VSS,!^ 1© ^n©finj;*q s^^* o^^ 6©ll:l;t8s;f laoiL^ .lllrf-nlslq xdi blaq t9t»£ saw 

jH9d;J' moil stell tc aievlAw .fe©fi^la b^oubotq btm aemSi&l 9i&si ledto o;f 

b90ubcnq &ti uci?X£ .Bevlsoa-x \;©isoa lo d"fljLfoxaa aiia" sni*l09T 

arid' 10 aolS&t&q9iq 9di lol sael ^6-^{,9Brtoit& gnlievoo aXXXcf JBiJ^qlaoai 

eK *0©,©lii s^s^l^BasiBS-s t©oiiBiiJBflX *iol Jbiua oJon 6nB lie©!) ^aint 

BKa n8ffiXalnsw'.^:>it -tarid^o o* aum/oiaa *s:alXjBOB to 8;fnamx»q o* X)«illcfa©# 

;ln9ms;rfij'a 2 b&ouboiq ©H «dj^*50^$ aninlaiaoi exIiJ-vsniievoo gioiiow 

a^fnuooB ©vX^oaqaai •rid' ^aiwoxla ©gBu^nisI asiilsiil ^i al aid x^ £)ft^B^9iq 

aaoatsq 9di to tccb r^iiri^ ©l>Bm al mIaIo oPI i.8«X;tiJsq ©ri^f lo aamsn Bdi bna 

l&lt&i^m b9dBltnu1 10 i^lbllvd 9di noqu boA^tow toa bBd blaq ■©irxBqaoo 10 

bBiaBb lo ttlini&iq noqu ba&mob ebj&m $M med^ lo ©xiou .ictarcarit 

edt ILb lo wexol 11i:fnX^Xq isdi I)©i:tl*a3* iooXM .itnenr^Bq lo ;fqX©09i 



3. 

payments made by him for labor and material; that plaintiff had never 
requested an accounting or statement but had regularly madempaymentg 
oh account of the note. The trial court approved the commissioner's 
report and decreed dismissal of the complaint for want of equity. This 
part of the decree is auoported by the overwhelming weight of the 
evidence. 

The complaint for accounting being dismissed, foreclosure of the 
trust deed necessarily followed. No complaint is made as to this part 
of the decree except the argiiment, unsupported by citation of 
authorities, that interest should not l»egin to run until the accounting 
was made on the hearing - over ten years after the date of the note 
and trust deed, ?/ith this contention we cannot agree. The dismissal 
of the complaint asking an accounting destroys the factual basis ©f 
plaintiff's argument. 

There being no error in the proceedings in the trial court, the 
decree is affirmed, 

AB'FIRMED. 

O'Comor, P, J., and Matchett, J., concur. 



■xeY^n bBrf ttiSnJL.&lq Itsjiii ^.lAiff9ijm b:ia todAl 'tot aid Tjcf 9b&a a^nsiaxeq 

s'iefl©i-88i£us©o ad3" Jievoiqqa d'-x-uoo Ijai-id" »iiT .©d'on ex^* lo Jxu/ooojb do 

iin'^' ♦x!^-^^P« ^<5 3'Xiaw lot ^oiAlcrncD sxlJ to Xaaalmaii) Aesiosf) Jbrta itioqwr 

Bdt to S'aglew gnlffiX»n»^9vu id bQtioqqusi b1 sfiioa^ arii- lo itsq 

sd;J to ©Tiifsolostol ,6©e3liB8X.5 gisisd s«X3'ni/ooo« 'sot ;^ftifiIqiHOo «riT 
Ciq 8iil? Oi? 8js s£«ffi al ;tiLtAlq«co oW ,J&9fs.'OlIot xlitsa^909a JE>©«f) d"ain* 
to noJ:;Js;fIo ijcf l>«d''xoqqiraflu ^^tneffiusrrjs eriJT ^fqeox© ««'xo«J& «xi^ to 

©rrofi Qili to 9Jb6 wfJ -xe^ta ai-39x a&t Tceyo ~ aniijaeri edi no 9bam saw 

lA^sztimlb oriT .seigs 3"onf5a© ew flteij-nft^fnoo airi* iW'XW *£9dl> ievii baa 

'to alsstf Isjj-^'OJBt 9di 9X0tt^&Bb snlJffifJoooB ns shI^bb tal&lqmoo 9dt to 

,;fneau.r3'xs s ' tti;ffllAXq 

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,11/ofioo ,,L t'^i^doiA^ bn& <. .. ,ioiii-OD'0 



42407 

JOHN P. FRIEDLUND, 



Appellant, 



320I.A. 433' 

' APPEAL FROM /| 

/I 




HOWARD F*^-.i|I3H0P and EUSENE H, ^W^M, 
lndlvldualiy^*Sti#"if«-e©««>q^iMai«j?« doi^g; ) 
business under the nsme and style ot ) 
LYMAN, ADAMS, BISHO? AMD DUPEE, ) 

) 
Appellees k ) 



MR, JUSTICE REBEL D£LIVER£D THE OPINION OF THE CC 

The facts that are oalled to our attention by the plaintiff 
are these* In a former action an appeal was taken to this court 
by the plaintiff and was reversed. Plaintiff, a lawyer, filed suit 
for forwarding or associate fees based on a written agreement in 
connection with the condemnation proceedings for the widening of 
La S«lle Street in Chicago, l^efendants received a f4e of 110,023,85, 
The plaintiff claims one-third, or i-S, 341,10, The case was tried 
without a Jury, On the first trial the court held that the contract 
was unenforceable and found for defendants on conclusion of olaintiff*s 
evidence. The Appellate Court reversed and remanded the case. 
( Fried! und v. Bishop. 310 111, ;^jp. 537), On the second trial the 
trial court found for r>lalntiff and entered Judgment for $95, 2ft* 

It appears that the evidence in the plaintiff's ease was 
established by reading into the record, by agreement, the transcript 
of the evidence from the first trial. The plaintiff copied the state- 
ment of facts from the brief filed in the first appeal, to which 
are added facts adduced by defendants, 

John P, Frledlund, an attorney, filed suit against Howard 
F, Bishop, £ugene H, Dupee and Spencer L, Adams, a law co-partnership, 
doing business under the name and style of Lyman, Adams, Bishop & 
Dupee, to collect agreed forwarding fees, arising out of condemnation 
proceedings against the property situated at La Salle, Eiigenle and 
Clark Streets, Chicago, In the proceedings for the widening of 
La Salle Btreet« The property was owned by a lodge. Legal title to 









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Jbeli? »fic>f 98.80 ©rfT «0X«X*5,Sl 10 ,Mirf?-«no aaX^Xp 1ti7al»Iq wit 

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^96^0 %A^ t&Sitmm.9^ ba& J&»at«»v»t ttx/oO 9;^sXXoq<}4 ftiif ••oaaJbir* 

9dJ l&lni bnooBQ »dt aO *(VBe ,qqA ,XXI 0X5 .qoilaJg ,v jbmrXBslal) 

i,fla,a©4 lot ;rit»fl?s5yt fewnssfna Baa ttiJfllAXcr 'set l>n«ot *n«oo laint 

aiAv (184(0 6 *tt i:$'ai&X<:^ eil;r ai BOti&bJLvn 9iit ^TaiI^ ai^scrqa ^Z 

tc^itOBRmni 9tif ^:in»ta»Bi^B \d ^btot39'i «di otal ^alb&9t xcf barfaXXcfalae 

'^iiiiB 9tii btlqoo ttiJalsXq »xiT ,XaiiJ iTaiit ad* aoit »0fiablV9 ari* to 

ri©lrfw o# tXAsqcp Jaiit ariif «X £>©XXt t^itd •xlJ aott aJoat to tifm 

f,%itutba9l9b xd beoubba a^OBt bvbbM bim 

bimw9& ^aniis^ja ?lt>@ baXXt ^\»snoii» lu «i^m;Xfial7'<} .SL odoL 

4tqiii8'S9a;^'Xi&q-oo wisX a «aaft£>A »J •taonaqS ][>cui attfiKI «fi •nayiSI ,i(eilBl< ^l 

9fc qodaifil «aMk£>A ^nAOxJ to »Xt^8 bnz mmma •di fbau aaanlajtftf gnioA 

aciianm^biiGO to tuc gal^lta «a««t gniArtAW-tot fi»«*xsjB ^^odXIoo 0} %*Hfl^ 

basi »ia9i^a& ^tSla^i aJ. te b9ifi,utl» xtn9qotq 9Ai taniA^ asnlftaaeo^q 

to snXne&ltr 9dt lot asnlbaoooiQ 9AS nt ^osaoixi^ ,V*«©i*5 IriAXO 

oit 9lSli XA3dJ ,»^oX A x<i b9ttvo BAtr \ii9qonq erlT «;rs9i;ffi aXXAfi aJ 



2 

the property was held by i^rledlund. He and his wife executed a 

declaration of trust, prepared by another attorney for the lodge. 

Lyman, Adaas, Bishop & Dupee represented a large number of property 

owners on La Salle Street in the condemnation suit. Lyraan, Adams, 

Bishop St D\ip«e, by Dupee, wrote Friedlund a letter, stating that 

they would represent the property in the condemnation suit; that their 

fee would be on a contingent basis, namely, one-third of any increase 

in the award and decrease in the assessment, and that they would 

allow Friedlund one-third of their fee as associate counsel, Frtedlund 

answered the letter, accepting the proposed terms. 

About two years later, the lodge negotiated a deal for the 
sale of the property. When the sale was made, the buyer recogniaed 
and approved the terms of the employment of the attorneys, and agreed 
to pay the contingent fee to Lyman, Adams, Bishop h Dupee, but stated 
that he should not be responsible for the division of fees between 
the attorneys. The terms of the original agreement between Friedlund 
and Lyman, Adams, Bishop St Dupee vera attached to the new agreement, 
which was signed by Friedlund, by the buyer, and by Lyman, Adams, 
Bishop & Dupee, Lyman, Adams, Bishop & Dupee filed their appearance, 
on behalf of the property, and Messrs, Mams, Bishop & Dupee filed 
individual notices of attorney's lien. 

Thereafter, the property vas conveyed to Foreman State Bank, 
as trustee, who held title for a sjmdicate managed by Bills Realty* 
In the interim, conversations and correspondence passed between 
Friedlund, Bishop, Dupee, and Bills Realty, with reference to condem- 
nation proceeiings, and in connection with the extension of a mortgage 
which the lodge held as pairt of the purchase price. 

It appears from the facte as stat ed that on December 31, 1929| 
the partnership of Lyman, Adams, Bishop * Dupee was dissolved. Certain 
matters between Messrs. Bishop and Dupee were carried on to November 9, 
1931, when they dissolved their relationship, Upon the final dissolution. 



«6^I^X imIJ "let I5«»i!fe3^s ^eriJona ^d fieisqftiq ^^iuit lo noliMiBlo^b 

X^iftqo^cT tc tediurn «3T:«.f & S»*n«e»iq8n eacftKI A qoxtoifl ,8BjrM ^flBS^J 

^tBBi^ , niltm aotf»RKni>ao& 9ttif nt iB^rt^ 911b^ ad ao s'xtisvo 

iH£^ :$mivi$a ^tfiitt»l & faii! tJb^i%% •to'^w ,©0(|^ ^d ,e»^a A qod»lA 

G3a4iBttX %a& t-c MiUf-'^nc ,icltftsfl ^eiancf tct^nxil^aos s no ecf AXwov ••) 

dmjX6«Xi'^ ,X«8ff«oo «J»i©o864B «B 9«1 tleciS lo irrlrisf-eao fcn«Xfi»ln1 woXX* 

&»3'xs=s f^^A i^x&niotSB 9Ai to ^nsmxolqmut •dJ to Bsnsi ttsii ^droiqqd baa 

bBt&tB Sud ^t'HqisQ ^ qodsXS ,8S)a£>A fOaflncJ ^^ ^•^ iae-galtaos 9dt \Mq ct 

n#®v;^»cf •••! )c aol8iTXf> adif 10^ sXcflsnoqse*! id toa bluoda 9Ji tBdi 

bauXb9l4^ nfi9¥t9Ki tanmi^«n:gd lAiil^lne ttki Id un^i •A'S ,BX9mois& •tis 

«#ises9»n!3A K9£i aiLT o^ b9Ao»:fiM Wev 9«qiu<2 £ qodclS ,8fRis£>A ^aenriJ bmz 

,asr.aM ,a8fl»^J x^ hns ,tsf^»cr »rfj ^cJ ^bttuIbBtt'Z x<i 6»«3li •«» Mollfir 

^aotte^flecc.© 'Jl«fi.: iSsqxiC s& qorislQ ,8aaBA ,n«inxJ •evqvC A qcxlal- 

bellt esqijl! ^* QorlaiS ,eiaft6A ,at«BeM J&ns ,x*''»q<«q «rf* ^0 llAded no 

•neiX a*Xdnnot;fA to aaoifoa Xs&f£>ivXl>ai 
,Jiiiif a^jiiif «««8ic ^sTnoo asw x*i«qo*»Q •rf* ,*j9;rifiaff9rlT 

♦t^XsaH aXXia x^ bajiesma 9iMr>lbnxi s toI nliti 6X»ri orlv ,9eJairt;f at 

ad0v^acf fiaaaaq e^jnoJbflcqaaTxcd £)aa aiioi^fiataTnoo ,ai*r»;ral sAt al 

-«»&noo ot eonetelei ilJiw ,x*X«eH aXXia baa ,a»qij<r ,qoxlalfl ,{)ituX6al.x'i 

e^£:g^ios; B lo £[oi3n9;^xe acit xlifxW aeit99naep al bOM ,asnlAa0oonq aoilAA 

«aoXiq eaAdonjLfq 9d;f tc ^naq a« blaxl a^jJ&oX ax{:f doldv 

^^^GX «XS isdffiaoaCI ao ;^AirC;f b9 t9i3% se e^OAt 9ii«r tuitt trtsaqqA ^I 

■ laS'xeQ «&eTXoeaX£> a«v 99q&CI A qcxlaiH ,B«itt£>A ^o^BlJ to qlrlanan^naq edl 

,$ ift£fiG97otl c^ fic fiai'ttjso vtav saqtKI £>£i.«i qoiialfi ^a^xaaaK n^avcfacf aiaf^sa 

,»icltiJXoaalJb Xsnit edJ ncq^ ♦(rldanoWaXei tXafW fisrXoaaiJt x»ri* najlv ,X5SX 



3 

Hovard Bishop took over all La Salle street condenmatlon casee of the 

firm. Including the one in question* His efforts were successful, 

and he succeeded in increasing the award from f 55, 367 to 186,500, 

an increase of 131,133. The asseeenent was reduced by a public 

benefit order froa t7,645 to *i4, 909,45, a s^.ving of 12,755*55, and 

interest of p8, 962,30 was collected. On November 27, 1936, Bishop 

received a fee of ^7, 783,25 for the increase in the award, and 

12,240,58 for the collection of Interest, a total fee of #10,023.83, 

of which plaintiff claims one-third, Oiipee received no part of the 

fee when collected, but upon the winding up of his affairs with 

Mr, Bishop, he received *7,000 from Bishop, for his interest in all 

condemnation cases then pending in which he and Bishop were interested, 

Dupee and Adams thereupon released their attorney's lien. Bishop 

released his attorney's lien when his fee was pald« 

The agreement that was entered into by the parties was 

set forth in the form of a letter headed "Law offices of Lyman^ 

Adams, Bishop & Dupee, Chicago, December 12, 1925," and addressed to 

John P, Frledlund, reading as follows: 

"Confirming our conversation about your property on La 3alle 
Street, «jr understanding is that you wish us to represent this 
property in the condemnation case for widening North La Salle Street 
from Ohio to Eugenie streets, being City of Chicago v, McCleur^ 
County Court t53227; and also to take care of the assessments against 
your property in the proceeding for widening and improving North 
La Salle from -sehington Street to Ohio Street, City of Chicago v« 
Buszell, County Court #53254, 

"The prooerty is lots 1, 2, 3,4 and 5 in Ostinsm's sub- 
division of Lot 1 in Rmhm's Lincoln Park Addition to Chicago, in 
S, E, t of 8, E, i of Sec, 33, T, 40 North, Hange 14, East of the 
3rd P.M., and is situated at the intersection of La Salle, Clark 
and Eugenie Streets. The award allowed by the Commissioners for the 
part taken is $55,367 and the assessment back against Lot 1 is 5*11452 
and the assessment ae;ainst lots 2, 3 and 4 is 15596 and the assessment 
against lot 5 is 598, In addition to this, these properties are 
ftsseased for the widening and improvement of La Salle Street from 
Ohio to i-ugenle Streets, for which we shall also appear. Our 
appearance and oleadings ere to be filed in the Joint name of your 
firm and ours, 

"vie are to endeavor by negotiations and, if necessary, 
by trial to increase the award and reduce the assessment in both 
cases as much as possible, ^<e are to make you no charge for expenses 
of witnesses or others in the special assessment matters, but that 
you are to bear such expenses with respect to the condemnation. Our 
fee is to be one-third of any increase we secure in the award or 
decrease in the assessment, and is to be payable at the time the 



5 

9ilS tc «e8jso nclt»amBtaoo f9**t;f& pll&B ^J iXjs fro jfoo^ qextsiS J^tsv^ 

t00c,Si8v o*^ VaCjSeii wof »riJ $fiit«»tsa| nl b»£>»«oojia sxl Ana 

goriaXfi ,8561 ,V;S ii«<ii&»v«i'^ aO ♦f)©*»»XIco asv 05«2©e,8d tc itBieiRi 

j';Q»r,SO,Q|# 1» •»! Xfl;fo.t ij ^tsetoini to jficWoeX-foo oilj lot 83,0*??, ^" 
•Ai to ^■««a (»A .&sirl«»©»'7 »i»0fc<f ,Mlri;f-»no aesiela ttX^aiaXq dtlAm to 

qcrlBl<^ .flolX a*^dfn:o?;f<$ '£i9£l? £>eaAeX»^ aoquen^Ai wmsbk baa ••qi/Q 
»f)iisc &^v 9et Blii fite^ aslX s'Tsanoir^tjs fiixl £iea«fX9n 

,n.6«^J tc aoeittn wjsJ* feafcaM "js^^**! a tc swot 9i^ nt dtfrtot y«8 
o^ bsA^etSu^B £n« ** ,esex ,SX *t9tla»0«(/ ^viAK9tdO ,c9<fiKI £> qoiiaiS ,«a«AA 

UwoXXot sfi sai&«fti ,£iwXJb»X'xl •<? adoJf 

eiXsO SU.C «: 'fucij iuode, hc/ :oo lao gniffliltnoO" 

sir; - . ^'r fiJ »Jtf dBiw .C". ,. . .::- 9i -»;>>."■ f: p.- J ■- q .-=-nr.j ya ^dfsi»«s#9 

;f#©l*e «IXjsc .«a ft3''-'>- ■ ir'rf^Blw ^ot »aso nol'^ ■^'©^q 

Jsaiaga e' j ©iiCaJ oJ oaX* ban jV xuoO y^ovoO 

*v p?aolrf9 to T£ j.p ^J?>©^;fg eXriO oJ Ja' mcnt ©XI«e bJ 

,^.,-..v., . .^^.^ ^^Jnuet) ,XJtilsj*ft 

-dHS s»ir..,. ,. ■•■'•"•' - ,*• /-^ ^i s;roi al •ttTago'sq »tfP* 

ni ,oa-solffO o:f ^lo^nlJ a'aiMff al t JoJ to aoXalTiJb 

erf* to ?3-' ,•■■-- .'^ r*> *»055 to i #3 .3 to' ^ , ■■ .5 

^•XjsXO 4^ tjs bfttBUfln ai tag ,. , ^ 

nAi lot a*i©ii;... ..-.*.<,« w^- >....-.■ v,« _.•.,:... "■ '=-'^'^-' ,*+«— »t2 ©lai?,..... -. .,..vja 

Se»X$ 8i X ^oJ ^8lii|»9JB t^^rti tcifmr a 2 neiQ;r jTisq 

♦'■^'•-laaaaaa --'* '•■•- «^^-'='''- 3I ^ finjs v^: , . ?./c.j ar-;-!^ • laftsaa axf* £tia 

a«« f ■ ,sXrfJ cJ iioi?i6fe«5 nl . fi #oX ^aiil«i« 

lioit ^.rv-:.y,. jl;-. - ■*" -' ~* ,•..-....,- .. ...^ ^osaasaa 

1^2 •T.sacq.e os , -^y oidp 

•swot to dffifin tntot 9(w< ;^ y.n oiJidqqa 

,\'ja8s»o»n ti .,&/us «noi*«i*08»fl ^<* ioTBa5a« oJ ais a;* 

iI#Gd ttt imtiBaii^aajB a£i;t atuifia^ ioc finsvA •ii;r asAerconx ot X«Xi;f xd 

aeajnaqxe tot asiAflo on u&% oaten oi aiA sW ^aXcTiaao^ as Jtia&n as aaaao 

tads iud ,a«to:r/sffl :fnafisaaaaA X«ii»«qB 9At ai a*iaxl;ro yo afteaaniTiv to 

itfO ,rtot*anB*]&ao« ©ri* o^ i»9qBin xWjhr aaaaaqxe rioua ijsad c* en* »of 

no JbiAVfi HAS ai aiiicwa aw •aAaniuii vsa te fcriil^i^— ad at a i a«t 



Olty pays th* award, We are to allow Jwu one-third of our fee as 
Associate Covmsel, In case the award and assessments «re negotiated 
before February 1, 1926, to your satisfaction by the efforts of 
anyone other than ourselves, then the fee to us net is to be one- 
sixth of the savings In avsrds or assessments. If the matter is 
not so negotiated within the tiae named, our fee is to be as above« 

"I fixed the tiaie for negotiations by other than ourselves 
at Febmaary 1st and not longer, because It will embarrass my 
efforts very much, as you can re=)dlly see, to have had someone else 
make an unsuccessful attempt of negotiation* 

"We will file the necessary pleadings in your naaie and 
ours and send you copies thereof* 

"If the foregoing arrangement is setisfaotory, please 
confirm by letter, 

"I enclose copy of our usual form of contract so that if 
you wish, some such form can be entered into and the above 
arrangement given to you in a sopar^te letter* 

VexTT truly yours, 

I^ugene H, Dupee, 
EHD:MER Lyman, Adams, Bishop & Dupee," 

It apfears that Mr. Frlodlund held title to the property in 
tinist for a lodge, and after the agreement of December 12th, Hr« 
Dupee sent Mr« Friedlund another agreement for Friedlund to sign as 
trustee* The word "trustee" in the agreement was in the handwriting 
of Dupee* 

It is submitted that the Judgment of the trial court on 

the second trial allowing plaintiff ^95,00 out of a 110,000,00 fee 

again nullifies the agreement and is not in compliance with the 

opinion of this court in Friedlund v. Bishop,. 310 111, App, 537, 

The Appellate Court, in commenting on the agreement, said, "The amount 

of Defendants* charges was agreed upon, of which Plaintiff was to 

receive one-third and Defendants two-thirds". In arriving at its 

decision, the trial court, in part, used the following language, 

on November 26, 1941: 

•Now, I find that there has been a lot of money spent by 
these attorneys in osrrying out this lav suit. I don't know that 
there is any testimony about who was to pay the expenses and the 
costs of the law suit; but it seems to me that before any division 
is made, these costs ought to be paid« 



b9t)ilSo'g«a ens B^Tnftfitaaaasfi baa M«va 9tit aaae al ,X»8m/oO a^aloeaaA 
lo aiTtoltltQ mi \4 «oi^OBl»itf;» 'MfOY 0^ |8SW ,i t'!UB0^4a'% aiolt^v 
^eno »cf e7 si ;^sn a» e^T set nnJ nad^ ,BevIeBi0o naxitf *t8ii;fo eno^/ia 
^i«<g 9cit tl .a^nanuiaaaaa IKO elr«taw« al Bsfliraa afi^T lo df xl« , 
,$ $cf o;? si set luo (Jbamarc aniit ari^ nid^iw bBtaiSo^nn oa [ron 

tarXaeiMO fiArfJ laritfc yd anoi,t«iJo3»n not aaitf adJ 6»xit I" 

te aaftrttacfni^ liJb? $i ^^ciApid i^asfieX ten baa #sX X9au']:<:(dl[ ta 
•fiX<? anceracs ftarf 9T/11I oi t®?>B ifXlfesan iiao tso% ec jrtofsp x'J^^ ai^fotta 

tfioi^ai^c^aa to ^qmS^a XirlaaaocuBnu na a^s ' 

Boa axas« iwoy at ffi|»nifc«»X<l t^ea^eoaii »ri? aXit XXiw aW* , j 

*tD»naM:f eairoo aox 6no« boa »«jre 

asflPio t%teit>Bl9itf»B ai ^naaia^nBiia gnlo-^aiot arf;? tl* 

ti ^ad* :■■■ ■ :-t Xaiiai/ ♦jfiio t© >to'oo aaoXana I" . --.vi 

: &«*je;?n© »d fiao imot rloce isicofi ^liaiw irax 
vtdJvtaX a Janata a lai do^ o;r atvt^ jrae««iiunipi 

,sn*f©X Y.Xi«* T*«v 

I ^«aa<|ua :fe qciiaiu ^asaM ,ft«axxl ii^^^:Q.E>£i 

Hi YiTiaqoiq am o^ aX^i^ &X«xl Amj£S>til'i% .iH tad^ B'xaa^a ^X 

••xK (jci^SX ladnaaaii t9 ^.naffaaaaa ad^ i^itA bnm ««a6«X « lot ^bi^'x^ 

•« flQI^a oi t)twXhelt% TOt tffa«af*S9« *t«d;ro^a;» £atfXJtei<i1 ••sM ^n»a aaqva , 

gJllftfi^vJbiiaii 9£it til ^mr tn^oiea-taa aM;^ ni "amd'amc^*' Jbiov aii? .«aa^am} 

•aaqpua ta 

00 iTiuoa X«it;r adJ Id tftaiiQftwi bn^ ;r^^ £>a;f^iiHo']i/s ai ;rl 

#*^ 00,000,0X1 a to iBQ 00»ae^ tttsaijilq ^atvell^ Inlii imcoaa •sLi 

9d:i d;fi>; !!^orisircff»eo at ioti 9 1 fnuti ;faaaraa's^ adt eaitiXX«n aiaia 

»VZc ,qm. *III 0X€ ^g^al-P ,v M^y^lisS ^^ ttuoo aid* to noiaico 

tmiome adT" «ibias ,tf aafiiaai^ ' ad;r ao ^iitnastnco fli fi^ivoO alaXXacoA adT 

o;f Aav ttl^aJUXSi doirt , io«i/ ^rxa« *»^ aairiada 'a^na&nataa Vl 

sJi ;ts Sfliviit,? ftX ."a-oiidJ-ow* 83rjRai>aataCi feiw Mi.d;r-a«o aviaoa^ 

^9^iiu:^afiX sflivoXiot ad^r b^su «7nsq nX ,^tuoa XaXi^ ad^ ,iioXalaa£ 

IXI^GX «0S <ia«r«avoif ao 

\ci ^uaqa x@^oa to tol a nQsd sisri »i©dJ iAti^ 5nlt I ,woM" 
?r>dJ '.rcni J'nol» I .^iua vai aid? ;rtfo ;jiiivii*s> di ax»Jtn:cJ*a aaail^r 
! aoaaacnce otii x»q oi Ba%r odv ttioda xnomli99;f \n« ai aiadt 
i' vas s'vo'^iBj .tE?rf:t em oJ aneaa fl Jwcf ;;fiJuo xaX ed;^ to a^aoo 

t&lAq ad ol tdg^Q a;^aoe •amtH «a6aa ai 



"While I don't know whether the contract covers It or 
not» I don't know whether It dose nor not. Now, I think that 
out of sheer Justice, I don't believe any attorney ought to stand 
up in court and say, 'I want one- third of the fees. You pay all 
of the expenses; I a® not interested in the expenses, * because it 
shows an inequitable division, finally, in the" distribution of the 
money," 

On December 4, 1941, defendants filed an amendment to 
their answer, pleading as a defense that costs of suit exceeded the 
amount sued for« 

On J^arch 2, 1942, the court rendered judgment for $95, £5, 
being one-third of $7,783,25 less 12600,00 paid to a real estate man. 

It has been auggested by the defendant that in the letter 
set forth as an exhibit to olaintiff's complaint, which is the basis 
and foundation of plaintiff's claim, the plaintiff consented that 
there was to be no charge made to him for expenses of witnesses or 
others in the special assessment matters, but that the plaintiff 
would "bear such expenses with respect to the condemnation". It 
would seem clear from that proTlsion that one of the expenses that 
is to be met by the plaintiff is the expense of witnesses with respect 
to the condemnation. The undisputed evidence shows that Ernest >i« 
Lyons was paid by ^Ishop i>2,500 for services rendered by him in 
connection with the condemnation, which services covered a long period 
of time and included aporaisal and analysis of the value of the 
portions of the building taken and the cost of reconstructing the 
damaged buildings and as a result of his work for some four years his 
services appear to have been effective, as the award was increased 
$31,133, 

In computing the amount of his claim plaintiff starts with 
a total fee suooosedly collected by the defendants of #10,023,83« 
This sum included a fee for interest in which the defendant contends 
the olalntlff under no circumstances has a right to rjartioipate, and 
also 0rom that sum a deduction of 12,500 paid the real estate man 
hf Bishop, thus arriving at a supposed net fee of |7, 523.83« However, 



jfst-. . -len a&ofe ? onA 9*aeb I .tea 

XXs "^q ucf ,15. 't6 Mld-t»«&no ; * |^«s l>n«! 'S^er^r* nt «tf 

,dS?«del 101: #fl«iB5i&«t ^»i»ft«9i tnaoe sfiiJ 42l'ex tS liaiaH aO 
«iUMB eJs^Ta© XjEf«f « 0* blstq 00,OOS$j taeX es.sev^fli tc >iXf»-«ac sflivcT 

siajscf 9id^ 9i doldv ^iat^lqino^ 9*ttJt9al&l^ oi SidldX9 o» «« tiStoT: tea 

Jailer Jbe:*^neBnoo 'iltSfiie.lq ftAt ^aJtaXo Q*"ttWfiijsXq to noWaJbnx/ot 6fui 

to s««t9A:riw to s»Rii«r^e tot nill e^ «&«» fij^udo on mi o^ aav ^vAt 

#o»qf»»*j rfJiv e«ffia»flf i*r t® mKsea^ M^ si tti*nx«X*j «#?? ypS #«« ad 9^ ti 

•H ;t8«£nS ^Aii^ avQiis aocaJbivd bftSuqBibau tt&T ,tic>ts»suambium •At ot 

ni. mlA x^ &»Tf#£jn»«s e»olTt«8 T;©t 00«,Stl cfcitel^ t«^ 51ao aaw ano^Jt 

6ol%a)q fiioX is ibatev^o^ s^olT^as lioXitt^r «ttei:f«niia£ur^9 e/iif li^iv izoH^MWiiM 

Sri* ^ a&lsY 9^ to ais^Xjsfls ftiia I,a»X«*iq«j» 6«»f>oXoni bits waif lo 

eii^ ^X^tMj^d'aaosai to tsoo adJ Mm a«^;f %nSS>litttS »dif to anoi^oc 

i»i/l ataet ft»ot eaioa lat 3i«sow a lit to tlimai « a« btt» a^aiBXitfcf ^^gfs«A& 

l>«aia&«s9i!X eaw M^k^ eii^" a^ ,e'rl*!>6tt» ntsad vf&A e* i«»<?Qfl aeolrMa 

.S^iX,X5| 
Mtv e^iMf ttt9til%!.c. aiDXo aiil to #fwe«A •/{# '9al:ruqRioa nl 

«f.8«j;S0,0Xl to 8*fUBfefl9t«£> «rit ttf feaJaaXXoo ^Xftaaocrerve aat X«*o^ a 

abn^crnoo fenstmt^b ad^r fiai^ttr ni $9f>*r9Snt tot aal s 5ebiiXoni sua aiifT 

has ,6tiBqloX?"rsc[ ojf 9ift^irt a asri 8i>off.;?t8iRi/o'Xio on taJbru/ tti^nlAfcf ad* 

n^Ai t»*a;t39 Lp.^'x ed^ Jbtea 0Od«S$ to not^t^i^^b b asva *Bft:f cKnTk' oaXs 

I'tarawoH •58*S89«?$ to aat ;rafi beaoqqAia ji Sm isalrlnta %iuti «qoxlaif %tf 



6 

when we come to check up on the figures that are Involved In 
considering the amount that le due from the defendant, ve find that 
the sum of ^'2,240,58 -wns on account of collecting Interest @n the 
award, which the trial court held that Frledlund was not entitled 
to participate in as fees. The fees received for increase in the 
award were S7, 783,25, of whleh Frledlund was entitled to one-third 
or 12,595,25, and the court held that the 12,500 paid to the real 
estate nian should be deducted froa Frledlund' s share of the fee, 
and entered a judgment for the plaintiff for i95,25, which we believe 
was Justified by the written agreement that was entered into between 
the parties, a copy of which letter of agreement is attached to the 
petition filed by the plaintiff, 

8o that under the circumstances we are of the opinion 
that the trial court was fully Justified In the conclusion that was 
reached. 

The Judgment was predicated upon a finding by the trial 
court on evidence that was undisputed and on evidence not Introduced 
at the former trial. The findings of a court in a trial without a 
Jury are of substantially the same force and effect as a Jury verdict. 

On the question of the interest on which the nlalntlff 
claims, it appears that the agreement in this case contemplated only 
an attempt to increase the award. Nothing was said or contemplated 
at the time regarding the possibility that payment might be so 
delayed as to necessitate a separate oroceeding for its collection. 
This interest was eolleeted by mandamus proceeding in 1936, This 
was a separate law suit which could not arise until after the condem- 
nation Judgment of November, 1930« and 9 ye&i*s after the plaintiff 
ceased to have an interest In the property. Plaintiff actually had 
received a large amount of fees from time to time from his lodg« 
and from the owners of the orox>erty In connection with the extension 
of the mortgage. There was no intention to include in the original 



»i^^ Hi afesfiJiiii 'sot ^evi«&9i e«ft.t •£(? ,»'»i s.i iil »**qjtol;fij5iq oJ 
X5i®f ari;? o* felaq 003 »SI 9!&i iadt JfeXsxl iTtuoo 9di 6i2«.^$9$e$«,^ ,5(fi. 

^MM t»slliM ns^X.nuX,9aoo 9Ai M i^itXJi&ui, \Uju1 »l^v tiuo^ £&X'ti eta .i^A^a 

.!icI;f9«XXoo 87i lot ;gflil>« 9 ocrtq *iRiMq9a a 9iMXQ8atp9n 9^ aa b9XAl9b 

Rldf .dSeX fli $iiiJk»«oo'xq 9tmmba»m \^ heioelloo a^vr ;fB9i8;rpJl alAf 

-^9bn<$e 9di ^9iJ» llitm •»jitji ^0/3 ftXtfc* x(9iii«r llua w&X e^aiaqte « a«v 

'itl^jdJUXq 0ii7 ^o^tji^ Bta^i Q ha^ 4O&6X ^iMfRD^oii to iOfiKji^i noiiMa 

■:A...%ll&i}3pM. X^Xjtiila^l^ 0x:ft9qtn€i 9At al in^^otal am ayttii ot bettesa 

®3£>0X alii o<nt »kXJ oJ eaiXJ wnt 8»8t to iHiirom« asnal « I>9rJL909t 

noiua9tx» 9tU sLiiv aolt»9ii£iot^ at xt»t9q,cn(k p4jf to a,%aiivo 9sii «ovt boM 

ijali&itc €dlf Hi •£)uXeni o;r aoi9fle<;fnl on cav »rt»4T «eaMI#i<uci eii# to 



arrangement any participation by the plaintiff in fees which might 

be recovered in connection vith a eult for interest due on the award. 

The original contract sued upon was in 1925 and the condemnation 

Judgment was rendered Soveiaber 28, 1930, The testimony indicates 

that the separate mandamus suit was filed pursuant to a separate 

agreement with the then owner, The Trust Company of Ghloago, as a 

result of which the Interest was obtained. The mandamus order which 

finally resulted in the payment of the interest was obtained In 1938« 

Upon the question of interest that Is before this court, 

it appefars from the case of Blakeslee'e Storage Warehouses^ Ino * v. 

The City of Chicago^ 369 111, 480, that interest is not an inciaent 

of the principal^ The court saidJ 

"On the other hand, the right to interest apart from 
contract, such as interest on the Judgment, does not emanate from 
the controversy, or from the Judgment or from anything of a judicial 
nature," 

And the court further saldt 

"Furthermore, it is obvious that at the time the judgment 
was entered there was no interest due. Hence, the subsequently 
accruing interest, recoverable by vittue of the statute, could not be 
a part of the judgment when it was entered. How the interest could 
afterward modify the Judgment by increasing it in amount is not 
suggested, and no logical intejrpretation of the law can reach any 
such result, A judgment stands in amount as it is entered, and the 
only way in which it may be modified is by a direct proceeding for 
that pui^ose. Interest on a judgment is to be distinguished from 
costs in a proceeding, for which Judgment is entered as 8 part of 
the nrincipal Judgment in the cause. The conclusion is inescapable 
that interest on a Judgment is not a part of it. It is further to 
be noticed that, under the distinction between the two classes of 
interest mentioned in Section 3 ot the Interest Act, the interest on 
the Judgment cannot be considered a part of the value of the land 
taken, for which the Judgment ^'^as entered ( Blaine v. City of Ohlca^ftf 
supra;. Therefore, if ar>oellant is entitled to interest on the 
Judgment, it is not by virtue of the Judgment or the Judicial pro- 
ceeding culminating therein, but arises solely under the provisions 
of the statute," 

It appears too when we come to consider the question as 

to whether «r, Dupee is subjtdt to the Judgment that was entered it 

is well to consider that he was a party to the agreement that was 



( 

V 

ac4;^af«s<*&«oo arit J&au S^SX ax a«v ncqv 6fi/» JoarsJfloo Isfli^Iio «£fl 

tis*&ffi«ir fT.^ /rii ?,? jr.-.-fe.tni' i.ari;^ ,08* .1X1 Cdf^ ^ ystiBOlriO to YJiP sriT 

ihijt^ , fiooo 9df »laqionlna srfJ to 

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£ *i sa *nf ot A ,JXJwi«n ilidua 

acit d c«f al it .seoqrrtfc' *ail^ 

tc -t- .,te;. wv . " t ;rfi»e^L-,, :.;..' ,v. . -j , ••.nq a nl hSmom 

&l(Jtp: :i.y^nJ a I aos axl? ^^nufio ^dtf nl . '. iMcrttHitncr atW 

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to aesBsXo ovif »dJ n9sv?«d nc, v ,|-jsrl* hvotSort sd 

no *r ■' ■'" ^""y ^ r. - '*-oe iettimSnl 

©d:^ no &8f^ntii: , ■4«x©ifr ,'(ji«tq»a 

?.nol^l-y --iebau xliySM9 seaiio jL'cf ^nlsTtrf? snl^sfilffXuD sfll5««o 

*'««;ftr}a:fB sdt to 

tl J&9i®^fio Mv^AXl? ^n^eigj^iit «c{^ 0.1 /^etc^ua aX d«QvC[ ^iK isji^eiiv o;f 
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8 

entered Into between the parties which included Mr* Dupee and the 

plaintiff, and It does not appear from anything in this record that 

he was relieved of his liability, and therefore under the clrouraetances 

Mr, Dupee le subject to the litigation that v&b proposed by Mr, 

Frledlund, plaintiff, and ie subject to the judgment that was entered. 

For the reasons that we have indicated, we are of the 
opinion that the judgment which was entered was proper, and it la 
afflraed« 

JIIDOMENT AFFIRMED^ 

BURKE, P.J. AND KILEY, J, CONCUR^ 



I 



t&d$ bnti^n alfSt til i^klA^-^tka oo^l freeqcw ;^Ofl tiHi^ it Baa ,tli:#f!fAlq 
■ 1 HI ba& t«s©QOiq b«w Jb^'ssjes taw riairiv ^neegJ&irt eilit ;rfiil? iiclnlqc 






««o 8201. 

FRANK A, PASCHKS, ) APPEAL FR(»| 

Appellee, ) ■"""',- 

/ COOK fiOUN' 
ANNA PASCffiE, ^^,^^*^™"'''^'®^^«^«^«©a0P8a)le JoJeoh Satfeith, 

Judge P^eeidlng«| 

MR, JUSTICE REBEL DELIVERED THE OPINION OF THE 0< 
This le an appeal by the plaintiff frofli an order of the 
Superior Court entered on July lit, 1942, On plaintiff* e motion the 
Superior Court dismleeed the plaintiff's oomplaint and the defendant's 
counterclaim, and denied defendant's motion and petition for the 
allowance of eoste and attorney' s fees. The husband, who was the 
plaintiff, filed hie complaint for dlroroe on Febriiary 13, 1942, The 
husband's complaint, as well as the wife's counter-complaint, charged 
cruelty, and set forth that the parties had not cohabited together as 
husband and wife since November 10, 1941, although living in the same 
apartment, but ocoxipying separate rooms. 

The court's order thet was entered on the motion of the 
attorney for the plaintiff provides* 

"The court being fully advised in the premises and having 
Jurisdiction of the parties hereto and the subject matter, and it 
it appearing to the court on the record herein, that the plaintiff 
and defendant are residing in the same apartment, although not 
oooupying the same bedroom during the pendency of this cauee, 

"It Is Therefore Ordered by the court on motion of the 
plaintiff that the complaint herein and the oounterelaia of said 
defendant, be and the same are hereby dismissed, 

"It Is Further Ordered by the court that defendant's 
petition and motion for the allowance of fees and costs, be and the 
same is hereby denied, to all of the foregoing the defendant objects 
and excepts, 

"eNTERt Joseph Sabath, 
"July 1, 1942 Judge , " 

The record thet is before this court consists of the petitions 

and answers and the orders of the courts The question of the alimony 

which was asked for by the petition of the defendant wife was referred 

to Aivln Kayner, special conmissioner. It further appears from this 

record that an order was entered on February 24, 1942 by Judge Lupe 

continuing defendant's motion for alimony to March 12, 1942« Subsequently 

it appears that the Commissioner submitted his report which contains his 



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aiUM (»ff^ ni ^nivii dg&ofyx^ ^1^%I «0X TstfsavoM aenia a)Xw bna bnBdBtui 

fitii \o noi;fo»' sr na a«w Ji8«{^ laMo B*i%uoo axlT 

laafilroiQ 1"ii;t^laXq ail^ not tamo;r*« 

3«i%'3rt feOB R»i5ia?f*" -^ " rif feeslYfia X-f^w** 3flite<J ;frwoo ailT* 

1^ rn.3 ,fs.3^.?E 9di btta o*9t»il aeXJi^q ©rif ^0 notSoibBt%ut 

Itlinl - * a^feft, ^ . -^ d^oeai ad* no Jtwoo arts' oJ gnXtaa^aa ^I 

tc iXs ,9ev affias ad^ ni ^fli5JtBei eta InAdaalaA 6aa 

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%Ai lo aoitfcffi flo sTiifoo '»tii %d bvt»biO afEola^ezlT aX tl" 

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tioQldo Jn&bmtBh Bdi -^iosrvel e^tr to XXa e;r ^ainab xcfaiail ai aaaa 

^rS^Tqa oxa ftaa 

"^MfeirJi s*ex ,x xiui" 

iiaottltBo 9£iS lo etaisiioo ^oooo aiiW a-tolacf ai itaiW fc^ooai arf* 

^fica/i nol3^85>»p arif ♦J'xuoo axlJ to anaMo ariJ fiaa aiavaiia ftna 

bp'i*ir-li^>r asw aliw Jaa^a-^tafc aH^ to ncltliBq arlJ \d lot ftasfaa aav jloirtw 

• idif iB«rxt ais^qqe n^Aitut Si ^taflciaaiawoa Xai9a<|« «iaB\aI aifXA oi 

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aid anXatnco tioJUii^i' iTfoqan ulA b^tilmduB •xaaoiaaiawoO 9AS i»Ai eiiaaqqa #X 



2 

findings as to alimony and solicitor's fees^ objections were heard and 
the ordsr was entered by the court as set forth in this opinion, 
UoweTeri it does not appear that the reeoz^ was filed so that ve would 
have the report of the CoaiBiseloner as to his findings and the evidenoe 
thft was heard by him, if any^ in reaching the conclusions that were 
subaitted to the court. From the order that was entered it appears 
that the court finds that the plaintiff and defendant wex*e residing 
in the same apartment although not occupying the same bedroom* 

Apparently there must have been eTldenoe offered and heard 
which is not in this reoox*dy so we will have to as suae that there was 
evidence heard which Justified the entry by the court of this order 
and the direction by the court that the motions for fees and costs 
be denied« 

la the ease of Lyons ▼« Lyons . 272 111, 329^ the Supreme 
Court held that} -vidence need not be preserved to sustain a decree 
dismissing a bill. The rule requiring the evidence to be preserved by 
a certificate of the evidence or recitals in the decree in order that 
a decree granting affirmative relief may be sustained, does not apply 
to a decree which grants no affirmative relief, but merely, in effect, 
dismisses the bill for want of equity^ 

After a careful consideration of the record as we have it 

before us we are obliged to consider the oz^der that was entered by 

the court Justified by the etidence that was offered, and it ie 

therefore sustained, 

AFFIRMED, 

CILEX, J. CONCURS* 

BURKE, P,J. DIS3ENTIN0 IN PART J 

In my opinion the wife is entitled to her attorneys fees 

and suit moneji. 



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890^ alcomollf ?a4 <d3^ £i«X:t^lna ei 9tXw aOl aeXniqo ^a nX 

. .taaoA lii/a fifta 



«56o 320 I. A. 434' 

JOHNSON OIL BURHER SALES 00., a I M^P^00^ 
corporation, 1,.^^^^^'^ / 




Appellant, ^^^^^ ) /OOHTY C 




) I / ^ 

) OF/COOK (ioUNTY* 



HERBERT H. NOTTK|;^'^ trading undiF"^^»- 
fina naa« and style of CENTURY CASKET 
COMPANY, ^ - ' j HONO^Bl^ ALBERT eJ IS|.E: 

,,.>-'^ Appellee. ) 



) HONotol^ ALBERT eJ ISLEY. 
) Trial Judge| i L I 



MR. JUSTICE HEBEL DELIVEBED THE OPINION OF THE COURT. 

This was an action instituted by the plaintiff to recover 
a $600 balance due it under a written contract to furnish and 
install in the pr^aiees of the defendant one S. T. Johnson horizontal 
rotary ftSl oil buxmer, together with certain specifically described 
accessory equipment. A trial was had before the court, sitting 
without a Jury, resulting in the entry of a Judgment in favor of 
the plaintiff for the suia of 1287.15 and one-half costs, or somewhat 
less than fifty per cent of the aaount sued for, the defendant 
having been permitted to claim credit upon the trial for certain 
charges asserted by way of set»off or recoupment. 

The plaintiff is a sales corporation, engaged in the sale 
and installation of oil burning eouipment. It is not engaged in 
manufacturing. The defendant is the owner of a building in Chicago 
which houses his casket factory and also contains a number of stores, 
offices and shops. In the early autumn of 1940, the defendant 
installed a new boiler in his building and at that time he decided 
to convert from ooal to oil as a heat*generating medium. He called 
Mr, Paul Buck of the plaintiff company, whom he knew to be engaged 
in the oil heating business, and Mr. Huck came over that very same 
day. After examining the boiler and inspecting the premises, Huck 
agreed to subait a bid. Within a few days thereafter, the negotiations 
of the parties culminated in the execution of a written contract 
which is as follows S 



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UvoXXot BA ai Aoldw 



September 17, 1940, 



"Century Casket Co. 
2600 Gloero Avenue 
Chicago, Illinois 

Attnt Mr. Herbert Nottke 
Dear 81 rt 

In accordance with your request, we are pleased to submit 
herewith our proposal for oil burning equlpisent to be installed 
in the Mewanee No, 111 boiler rated at 4835 Master Steam Fitter's 
rating now installed in the above raentioned building, 

We propose to furnish and install one (1) 3^ type AV 
full automatic operation, S, T, Johnson horizontal rotary fuel oil 
burner for use with No. 5 fuel oil, including the following controlsJ 

0. E, Starting Switch 

Minneapolis Honeywell Prograr Panel 

" " Magnetic Oil Valve 
" •• " Qas Valve 
* * Saf«ty Stack Switch 

Combination Gas-i:iectrio Ignition Assembly 

Ignition Transformer 

Genuine S, T. Johnson Vieeoslty Flow Control Valve 

McDonald Miller Low Water Cut-Off 

Minneapolis Honeywell Preseuretrol 

Minneapolis Honeywell Thermostat 

Tork Clock 

Hi-low Fire Assembly including linkage, secondary 

draft door and steaa sylphon. 



One 


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We propose to furnish and install a properly designed 
and constructed ooibustlon ohaa^er of first class brick set in high 
tenrperature cement. Floor of the combustion chamber to be of the 
checker board type for the uniform admission of secondary air. 

Furnish amd install all necessary electrical work. Service 
to be 220 volt, single phase, 60 cycle alternating current. Furnish 
and install all necessary pipe work* Suction and return lines to 
be of li" standard pipe. 

This contract guarantees the burner and equipment ae 
outlined above against defects in material and workmanship for a 
period of one (i) year. Also to provide free service for a period 
of one (l) ye«r« 

We propose to furnish and Install in the place as designated 
by the plans, one (l> 1500 gallon standard Fire Underwriter's fuel 
oil storage tank including fill, vent, suction and return lines. 
Tank to be provided with a manhole bricked to grade* Tank to be 
provided with brick and sand fill. 

All of the ebove equipment installed as outlined for the 
•urn of 1909, 00« 

We inclose descriptive literature explaining the various 
features of our equipment* 

Yours very truly, 

Johnson Oil Burner Sales Co. 

By Paul B. Huok," 



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2 

"9-24-40 
"Johnson Oil Burner Sales Co, 
3900 W, Devon Ave, 
Chicago, Ill# 

"Furnish and install as per your letter of September 
17th last 1-&I type 30 AV S« T, Johnson fuel Oil Burner Including 
controls as listed for full automatic operation with No, 5 fuel 
oil, for the sum of 909,00, Payment for the above equipment to 
be made in three Daymen ts over a period of ninety days (90 days), 

Herbert H, Nottke 

Century Gasket Co," 

Immediately upon the signing of the contract, the plain- 
tiff s eupemrlsor of serrlee and Installation, Mr, Paul Jones, took 
charge, and the work of installing the oil burning equipment in the 
defendant's boiler proceeded apace. The Job was completed about 
October 1st and, according to the testimony of Jones, it was 
completed in a first class, substantial and workmanlike manner, with 
the possible exception of one item; the cutter's torch had left an 
Irregular edge on the burner mounting plate, Nottke, the defendant, 
spoke to Jones about this and Jones agreed that, while it did not in 
anywise impair the efficiency of the burner nor affect its opemtion, . 
the uneven edge possibly did detract from the appearance of the plate» 
Consequently, he said, as soon as they could spare a man for that 
purpose they would cut and mount an entire new plate having a 
regular edge. 

From the evidence there is a suggestion that according to 
the plaintiff's witnesses this was Nottke* s sole complaint. Both 
witness Jones and Oliver Hansen, the manager of the service 
department and the general manager, respectively, of the Johnson Oil 
Burner Bales Company, testified categorically that they were never 
apprised of any other of the numerous claims raised by the defendant 
at the trial until after the institution of this suit; that th«ir 
first acquaintance, with most of the claims was upon the filing of 
defendant's answer* 

It appears also, upon the suggestion of the t>laintlff, 
that a few days later, Mottke called Jones on the telephone and 
demanded to know when the plate was going to be replaced, Jones 



t 

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4 

explained that it vas then th« very peak of th9 season for heating 
•quipment; that they vere in the aidst of a tremendous rush^ as a 
result of which they found themselves short-handed; and that as 
soon as they could possibly spare a man they would h&ve the plate cut 
and installed. He further testified that he assured the defendant 
that the matter would be taken care of very shortly and that in the 
neantiBC the irregular edge would not in any manner affect the utility 
of the burner or the operation of the boiler. To that Nottke replied, 
"You get your nan over here by twelve o'clock today, Saturday, or 
don't bother to send any men at all*** Mottke denied having aaade 
such a statement, but he was compelled to admit on cross-examination, 
that he didn't reaeaber whether he had made it or not. Jones says 
he did* In response to that, Jones said that he was sorry, but it 
would be impossible to get a man over there that day; that welders 
do not work on Saturday; that he would be there to do the Job on the 
following Tuesday morning, Nottke' b reply was that he was Just 
getting "the run-around"; that unless they showed up there by twelve 
o'clock that day, he would get somebody else to do it; that the 
Johnson firm was not the only otl burner company in town« On the 
following Tuesday morning Jones arrived at the defendant's office, 
but he was not accorded a very f&vorable reception. The defendant flew 
into a violent rage and jumped up and down in a paroxysm of temper. 
He was visibly agitated. He told Jones that he had ordered the plain- 
tiff company to fix the plate and they had not fixed it; that nobody 
from the Johnson Oil Burner Bales Company could ever touch that 
burner a^ain; that he would not permit anybody from that company to 
lay a hand on his boiler; that he was through with the Johnson Oil 
Burner Sales Comnany; and that nobody frt)m that firm could ever come 
there again* Jones departed. A few days later, he sent the welder 
back in a renewed effort to install the plate, but apparently he wae 
not permitted to do so. 



f 



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6 

^ ShcBfttly after that« Jones called on Nottke agaln« Mottke 

was still exolted, but after a few minutes he calmed down soaewhat 
and Jonee was enabled to tell hla that he wanted to finish the plate; 
that he was desirous of getting the matter off his mind and Nottke^e 
mind as well* The defendant insisted that he be permitted to have 
his own woriuian do the job. To make it agreeable for all parties 
conoemed| Jones told the defendant to get the man whoa he had employed 
to out out the boiler front or some other welder of his choice to 
subait a proposal and if the price was satisfactory the company would 
be glad to pay him to reaount the plate. The defendant denies that 
anything was ever said about a proposal. He says that he was simply 
told to go ahead and have the plate fixed and the plaintiff would 
pay for it. 

Thereafter the defendant paid $309,00 on aopouat of the 
contract price of '909,00, but failed to pay the 1600,00 balance, 
with the result that the plaintiff brought suit. 

About the end of November, 1940^^ an explosion occurred in 
the defendant's boiler. Considerable damage ensued. The burner was 
jarred froa its position and the brick work surrounding the boiler was 
loosened. The defendant called in the B&oine Fuel Company to make 
the repair s« 

There is a suggestion made by the plaintiff that there was 
no evidence in the record of any causal connection between the 
explosion and any fault or failure on the part of the plaintiff and no 
showing that the explosion and the resultant daaage were in any manner 
attributable to any breach of contract or warranty by the plaintiff* 
The court, however, at the trial, permitted the defendant to set off 
the cost of the repairs against the amount due the plaintiff, Counter- 
claias were also allowed for certain additions and improvements, some 
of which it is suggested by the plaintiff were not even mentioned in 
the pleadings. An attempt was made to recover for an alleged leak 
in the storage tank, but when it developed that the witnesses were 
unable tp say that there was sttoh a leak that particular claim was 
rejected* 



6 

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6 

The defendant suggests in the brief filed by him that the 
contract entered into between the plaintiff and the defendant for the 
installation of oil burning equipment provides that the burner and 
equipment are guaranteecl for one year a; ainst defects in material 
and workmanship. It also pirovidss for "free service for a period of 
one year**. It is further suggested that plaintiffs represented them- 
selves to be "heating engineers". The plaintiff's representative who 
prepared and submitted the contract^ Mr* Huck| was an oil burner 
engineer \rto had had technical training. The defendant sufaalts that 
he knew nothing about oil burners and never had any experience with 
thea. Mr* Huok for the plaintiff examined the boiler and the premises 
to be heated four or five times and then prepared the contract and 
speeifioations. The defendant relied upon Mr. Huck to design a 
speolfio and proper installation that would be suitable for the purpose, 
and it is contended by the defendant that the installation was not 
fully completed, was not engineered properly, was not fit for the 
purpose and was not installed in a workmanlike manner, and specifies 
a list of thirteen items showing defects in the installation of the 
oil burner as performed by the plaintiff. 

^y' It further appears from the defendant's brief that the actual 
out»of*pooket expenses of the defendant for making the corrections and 
repairs of the items that were suggested as being not engineered 
properly were I912«86, as evidenced by Exhibits 1 to 10. That the 
defendant made these payments was stipulated by counsel on the trial 
and evidenced by cancelled checks, 

iiv^ Adams, a witness that was called by the defendant, testi- 
fied th£it he determined the charges to be made for the labor and 
material on such Jobs and that the invoices in question reflected the 
fair and reasonable charges at the time for the material and service 
rendered. Mo evidence vas Introduced by the plaintiff as to the 
reasonableness of the charges* 



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) 



7 

It appears from th« evldenoe of defendant's witness Mr« 
AAamu, thftt his btislneee was senrlce and maintenance for the Haelne 
Fuel Oompany and that he had been with that coapany approximately 
tvo and a half years. He stated that he had been In the oil buziaer 
field about nine or ten years during which time he had Installed 
and serviced oil burners. He further testified that he had estimated 
costs and charges on other burners and Installations* He further 
testified that he was employed by the plaintiff for a period of a 
year and a half or two ye- rs some five or six years ago and that h« 
worked on oil burners while employed by the plaintiff. 

The defendant further suggests In his brief that the major 
Issue In the proceedings In the trial eourt| which was not touched 
upon in the plaintiff's brief , was whether there was an Implied warranty 
of fitness for the purpose and. If there was, In what respects were 
there breaches of the Implied warranty* 

It Is suggested that the list of defects set forth by 

defendant discloses numerous and substantial defects In the Installation 

of the oil burner , equipment, and establishes that the Installation was 

made In a very unworlcmanllke, one might say ''slip* shod**, manner« As 

Installed the equipment was not fit for the purpose because It did 

not operate properly from the second day after It was put Into operation* 

Defendant then calls to our attention on the question whether there 

was an Implied warranty, the orovlslons of Sec, 15 (l) of the Uniform 

Sales Act, Ill» HeV« Stat. 1941, oh. 121i, which statesi 

"Where the buyer, expresely or by implication, makes knmvn 
to the seller the particular ourpose for which th# goods are required, 
and it appears that the buyer relies on the seller's skill or Judgment 
(whether he be the grower or manufacturer or not), there Is an Implied 
warranty that the goods shall be reasonably fit for such purpose," 

The plaintiffs were heating engineers and their representative 

in the transaction was an oil burner engineer* The defendant, as we 

have stated before, never had any experience with oil burners and knew 

nothing about them. The purpose for >^ich the equipment was to be 

used was made known to the plaintiff's reprcBentative, Mr* Huck, who 

thoroughly examined the boiler for which the equipment was to be 



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e 

Installed and the premises to be heated^ and after so examining then 
four or five times, he was the one who prepared the contract and the 
•peolfleations. The defendant relied upon Mr, Huok to design a 
speoific and proper installation that would be suitable for the 
purpose. The Instant situation Is obYlously one whereby operation of 
law there Is an implied warranty of fitness for the purpos** t 

Xb Bamett ▼. Kennedy^ 315 Ill« Apo, 28, there was « 
oontraot to purchase a stoker and controls. The purchaser knew nothing 
about the working or operation of the stoker ajad left everything to 
the Judgment of the seller* The seller knew what the stoker was to 
be used for and the court held there was an Implied warranty by oper- 
ation of law that the stoker would be fit for the particular purpose* 
Eridence of oonrersations with the salesman at the time of negotiations 
was pemitted in establishing the existence of the implied warranty 
of fitness for the Durpose, the court saying) 

"The court prooerly admitted oral testimony not for the 
purpose of varying the terms of the original agreement, but because 
it tended to establish the existence of an implied warranty of the 
reasonable fitness of the stoker for the oarticular ourpose for which 
it was Intended to serve^" 

Also cited is the case of Lathrop-Paulson Company v, Perkeen^ 

229 111* App« 400, There a sale was made of a bottling machine to a 

purchaser who had no experience with or knowledge of the operation 

of the machine » The machine did not properly wash or do the work for 

which it was purchased* In entering into the contract the purchaser 

had left everything to the Judgment of the seller. In finding an 

implied warranty, the court heldl 

"Under such circumstances this parol testimony is not 
testimony offered to vrry the terms of the written contract, but as 
tending to establish the existence of an implied warranty of the 
reasonable fitness of the machine for the particular purpose of 
washing bottles and under the circumstances was properly admitted," 

Plaintiff's reply to the defendant's suggestion as to an 

implied warranty of fitness for the purpose for which the oil burner 



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,«iooQii«<j td?^ '" " enJiT i.- Ttn«'st«v b^tlqml ha at 919AS vaX 

-ft9(7C ^«f x^^^^'x^^v SAiXqal At tmv »ftLt fii»/i ^rwoo ftdi btui not £•■» atf 
,®8ocnuiQ naIi;ol;f«i«q erit ndl; *lt ©ef Woow nsiola srij ifsilir iral !• «oi#« 

sii^" 'iot ton v^0R3^t9?;.^^ I^- ' ' * " ? ^Xnegotq t-stMoa ©xlT* 

9id» to : *'ix» 9^ ilzil(iaiU9 oi b9bamt tl 

xioi^LW n&t . jato^s 4Mi} to afivertit 9Sji»U9999% 

>fl9^3ina$ ♦▼ xtm qBtoO po s Itj g'^^-gon d:ra J to »«Ad »riJ ti fre^io oalA 

a q3 sfllJlOiSfB •^ntlSiod s Ic 9l>«fc asv 9let a on«dT ,00^ #qqil •III GSS 

fioirfsnt! -i^Bl-wcflS no i!*lv ©on»ln»c(Xe cfl fajul oAr nesailoivq 

not ^{now ftjcij oL 10 aBic^* -ftinsqenc^ *oa Bi6 dfliilosfB 9Af *«filflo«jHi 9x1* to 

notjgrionwq 9d:t JoanJaoo e/U o*Hi gnXn&;ra« til ,6a8«xIonwQ ««v #1 dolflw 

a& -gnlbntl nX .neXIfis »£i;r to tc!»ir^i/t ^^^ <)* :gnl/i;rvx<»T» *toI kmA 

(bli'fi t-mtitt 9X& ^xiOAtiByg b9l£c!ml 

BS #lfCf ,;?• >llC0-. if'3.t:M'".;^ srjj' '^r. sb:--*S «3.-fv Vi.-v ©^ livnsttQ X^0mXi99t 

ed^ '^ fleiidB^se oif :^lbtt9t 

tc »t to fitaJlt elffaacas«n 

"tbtiiiabA iIn9Qcn<| «aw 99ea£t3aot>nlo efiur n9btui bna 99liiod snidajsw 

I £toi*«938XfQ 3*>«»J!>fH9to& «ri^ oJ^ vilqsn a ♦'ttl;tnl«XS 

n9niv^ lie eiiJ doiiiw not seoqnwq ori^ net 9tQ«a#it io ^^ounnaw fieilqai 



9 

va8 ourchased by the defendant^ Is that far from being the most 

Important Issue It is not in issue at all; that the subject matter 

of the !^ale in the instant case was one 3i type 30 Ar S, T. Johnson 

horizontal rotary fuel oil burner with controls, a known, described 

and definite article sold under its patent or other trade name, and 

cites as a case upon this question Fuchs & Lena v. Kittredge & Co .. 

242 111. 88, where the court saldt 

"Where a manufacturer contracts to supply an article 
which he manufactures for a particular purpose designed by the 
buyer and known to the vendor, so that the buyer necessarily trusts 
to the judgment or skill of the manufacturer, there ie an implied 
warranty that the article shall be reasonably fit for the purpose 
to which it is to be applied. The rule is limited to oases where 
an article is ordered for a special purpose, and does not apply 
to cases where a special thing ie ordered though it is intended for 
a special purpose* Where a known, described and definite article 
is ordered of a manufacturer, although it Is stated to be reauired 
by the Durohaeer for a particular purpose, still, if the known, 
described and definite article be actually supnlied, there ie no 
warranty that it shall answer the particular ourpoae intended by 
the buyer. In a contract for the sale of an article under its patent 
or other trade name, there is an undertaking that the article 
delivered shall be of the kind ordered but not that it shall be 
fit for any particular purpose*" 

And then it is further suggested by the plaintiff that the idea of 

an implied warranty is further excluded by the consideration that 

even if there is unstricken evidence in the record that the buyer 

relied on the seller* s skill and Judgment, a question on which there 

is grave doubt, there is absolutely no proof in the record that the 

fftot of such reliance was ever communicated to the seller; it is not 

enough that the buyer shall ortTately rely upon the seller* s Judgment; 

the seller must know that he is doing 80» Finally it is suggested 

that there is no pjroof of any breach of such alleged implied warranty*. 

The obvious purpose of the oil burning unit was to maintain tempera tuz*es 

of a particular degree and there was no evidence at all that it 

failed to do so. 

The plaintiff has called to our attention the fact that the 

court has stricken from the record, on motion of the plaintiff, the 

testimony of the witness Adams offered by the defendant as to a causal 



i/iC!«ii£!o^ .7 «S vA OS ^fi^t 4s «ifi<» 9«w 0@^c ^na^eiii 9i:l$ ai 9£a3 9sU lo 
•^r •■■'•T08»& ,flvo^4 is ,«Xoffirats© ^ariv t»«p«ii«f lie I^,tit x'%ei^<it £Ata<^zin(id 

aim ««««I2 9lbtM%:t ^^SLt-^ to ti|«^>>q[ &tl %*kSi» &lCik 9Z0tt%M 9tlat%9h Jbtu 

to!SkjLJl3iMMMM •» -MaJl,.#.,M^^ iiolf»*in» tldJ i*cci/ »aso « fti* •«*io 

}&M« -Hiwca t^dt »^«J*« »88 •III SJk-S 

sd-eif ; , I : ; xn^jcc^ toA nvftfcf 

e©: ,-j-r 111 . --ca ®il;f i.^iiJ t^iia^K^V 

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b^^B^B si: *( , iJE?xi«.K' -• f-'i)-?© ai 

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©4 XXaSb *1 Jsrij J^cK d XX^i4« B*ievlX«A 

" i,mBQiifmq •si»X««>i!ft«q %njB icTt #11 

iaAi fioX;fa'x«fei»ffoo eri^ x^ bebuiox^ tsiiiTnii^t »i X*«»^'««*' ^lltfml an 

9^»iiJ fialiiw no HoXl-aftWD is ,*H®ai8&fift &«* XXiJte s*iaIX«® «il;f fio t>mJLt*v. 
9tiS iBUt *'s;o»6t sift nl Icoitq on tX«^»i^ostf« 9l h^tuAt ^iiSucH sira^ •! 

Ton si y| j-xsiXskft »fi:? o* SmS&nimmmeo *s®v« aaw "•■aawili)©'* riwys to *ob1 

^t««SSgiV8 ei #1 'eXX^.fit^ «os ^iofe' ftl «;£( rndif woujC tevn n:»ff«« «£if 

«-^?nBiir.iBii?' l>»lXqffll I^b^^Iz dufSB to itiois**3M5 ifita to tcwnq., ©«■ al •Y»<tfr ttS0 
:»'jiy^5?Tt$epBf»* al^^^fniAfjs «> a;. ^mtiVisjc •> eeotfywq, ai;oiv<fo ftriT 

T9dt bxtt «o*t8*S •»«it?oWn«rr « lo 
toa of) o^ Ixtlial 
•ffir »*rtd fast «<5 i»9lJfn03Mfi» •ttwo oj fielXso sail Itli^ftljiriT ailf 

•If* ,'*ii*niiBX^ ^lisf to nol^roa no ,fen:o6«i ??ri# motl HffrfoliJe 8«ri J«i«fo© 
raantjBO « qS >'i% :tnj&ba»'i»i> 9dlf X'^ Jba'xalcto anaftA eaaii^lw a/i? lo x^om^^^^^ 



10 

connection betveen the explosion and any culpable act or omission 
on the part of the plaintiff, on the theory that hie evidence was 
stricken on the ground that this witness was not qualified to 
testify as an expert, and the evidence of AdaAS was criticized n^on 
the ground that he possessed no qualification to testify on the 
subject of explosions so far ae this record reveals* Several pagss 
of defendant's brief are devoted to establishing that Mams was 
familiar with the installations and had estimated cost of repairs 
and was fully fitted for the purpose for which he was offered as a 
witness. However, it appears from the record that his testimony 
was ruled out by the court and no cross appeal has been prosecuted 
to review that ruling, so that under the olrcumstanoes we have to 
consider the court's action in excluding the testimony was fully 
Justified. 

However, when we eome to consider the evidence offered by 
the defendant, it appears that two days after the installation of 
this oil burner the front door of the boiler blow open and about a 
half hour later the door was blown off, Mottke testified that he 
continued to have trouble with the boiler every day. The burner 
would go out and the doors would blow open and several weeks after 
the equipment had been installed Mr» Nottke arrived in the morning to 
find the front and back doors of the boiler blown off, the windows 
blown out, and the coal door was blown open. The front door of the 
boiler was lying on the platform. The burner equipment wae moved 
about 6 inches from the front of the boiler and the brlok work of the 
boiler was loosened up. 

It appears too that plaintiff's heating engineer and manager 
admitted on cross examination that if you put a pyrostat too close to 
the brickwork, which is subject to intense heat, and too close to 
the fire, it it oosslble that the brickwork will reflect more of Its 
percentage of heat than it should and therefore the pyrostat would 
not be in a position to perform the service as a thermostatic control. 



01 
iioisiSJEcG 'xo tb» Bl^A^IiiG ^£ui SkflA ticlticlqx^ «i& cn»«v;r»tf iici7o«rtnce 

a»3^q X/weveS ,»l8ST»-r fi^eftrr ftldif ta tat o« anolaoicitt lo td«t<^* 

asw eaiaM Jsd* sflid«ilda?8« ot butornb 9tM itttd a^itftaftae^afe to 

91 f ^aclJ'BlIaS^aitl srit ri;f iv tAiliiBsl 

o«yt0q ail* ^ttJt fiaa-iTll "t/fwt »«v Boa 

flXtft offZites;:? «d1 ^i&«j:ox» oi «oJtt?9a t'lf^uxo© ai9 "x^i&iafiee 

,I»ani;feirt 

to n©i*i8lX«*aai exi^ i®^t.« st«i> ©w? *^^ a^ssgisw #/ ,:r£UB&i]ftte6 a4ir 

« :t<c;a^s &<!» aa<^ V»X(I *t«ilild ad:^ tc neoi» $A«ntt «if^ tamwd Sl» nidi 

bd ^Mdi i^ittihi^t ^^^fcM .Ttc mnsiti a«v tsccfr «>d^ "la^aX ivofl tXjul 

'ii»^'\s 8a[»e>r X»<sava8 ^ns na4|a vt9l4 J&Iirav B*foe* edit fina ii»> Qa dXvcnr 

01? 3i»in'i<sai fsd^ al ^evl'iig a:i^9oM ««xH ftaiXaj^aai as^4 hmd $js»aKiiMp» •tit 

a?j©&niw ^d$ ,^t«5 nwol^ t«IX©<i aii? to ai««i6 afajsd JE;fl« ?«<nt eti* bmXt 

»Ai t« laclt fnvtt e£f7 ^.asqo flwatX^sl aj9W fOO& X»ei> axtf 6cut «>uo cnraXd 

iKiTaxe^ ^i»« }fi(9£qiif'3^ %'S'£Pti/sf axlT ^vxatJjaXq ad^ nc sfli>(X aav laiiocf 

djfir to jfsow ;^Gjhtcl «K^ Aoii; -saXiccf axi^ to iTaa^t ail;^ aont aaitoaX d 9uQ4m 

«qir baaesooX a&w •salXo^ 

o* 98910 oct ■iBS»€n%q i! tvo uox tl tfirit noM«nl««x9 saota o© taJtXaO&a 

odT a^oie ao^ bOM ^in^^A n^awtnl cl taa^cfvs tl iioitfv ^tsamfsind aii^ 

9ti tc rxete jTaeXtarr XXIv MxQ\*iict%(i ndi $*M aX;liaaoc] aX tX ,aiXt ad^ 

j^Xuew ^a^«on:^q ait^ a^otaicetiir fiaa t>Xi;oila ti luuiS 9aa<i( to a^aJTaaataq 

^XcxiTJioo oXJra^''ec£u'^a2i^ a aa aaivraa adiT onotiaq o^ iioi^Xaoq a al a<r ton 



11 

and the safety of the boiler depended on this Instrument* 

There were a number of Items that were oalled to the 
attention of this court and the trial court considered the questions 
that were offered and the court reached the conclusion that the actual 
out*of-poclcet expense of the defendant for making corrections and 
repairs after the explosion that we oalled attention to in this 
opinion was 1312 «85y as evidenoed by exhibits 1 to 10; that the 
defendant made these payments was stipulated by counsel on the trial 
and evidenced by canceled oheoks* So that it is apparent that there 
was some cause that brought about the unusual conditions that were 
testified to by witnesses and there is not any eyidence in this reeord 
that the defendant by hie managing or operating this oil burner did 
anything that brought about the damages that were the subject of 
this litigation. Under the oircumstanees we are of the opinion 
that the court was fully justified in making this allowance and 
entering the Judgment for the plaintiff for the difference between 
0600 and the 1312,85, leaving a balance of |287fel5, and one*half costs. 

9o that iq)mn considering the eTSienoe upon the subject 
matter of this litigation we are of the opinion that the court was 
ful3.y Justified in entering the Judgment for 1287,16 and one*half costs* 

JUDGMENT AFFIRMED* 
KILEY, J, SPECIALLY COMCURRINOJ 

The court heard the testimony and saw the various witnesses 
and allowed defendant the set-off of i312«86 and entered Judgment 
for defendant for $287,15» There is testimony in the record to 
support the set-off and to establish the causal connection between 
the defects in the installation of the boiler and incidental apparatus. 
The court did not strike the testimony of Adams, defendant's expert 
witness. The court sustained two motions of plaintiff's counsel to 
strike Adams' testimony, but a reading of the full record of that 



t 



XI 

^ia9imn.i*nl siiid' no £«Is0eq»6 'Sdrio<f •dt )o x«^»^a* 9di fins 

«x« ©J i^elljso «i©w Jftri? E«5«t/ -Jo '£»cf£jun s »t[9v «n«ilT 

Sob aaotf s9tioj> g^iXeffi lel ;rfi«Jb««}9l) «xlj^ to •e«4i<pc« ;rej([ooq»to«^vo 
•irf? iciJne*t> f.'«IIa5 sw JijdJ noiaoitpc* 9xlJ iet1» vtJUiqin 

^S iBdi {01 ot 1 i> ^cf 59oii»b|7» as «d8»SiSi aev aoioiqo 

9i6d3 t^i&t tae^xq^ix 9i it i&di ot «sjfe»fi{) Jboleooso X'^ j[>ean«Llv'e ban 

JHoosrt ? $sn9£l7& tnjs ^eii ai 9ntfAi btui 99a&9attM xd o4 b9l1tt99t 

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to 3t>Bl(itJ9 »di eidw ^ndi ^B-g&amb 9di iuoda Sd^ond ^»Ai ^nldtxoA 

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»«w Jru.": . — _.;o «iW to ©T^a ©w aolim^lttS ^tdi to let^A* 

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Jnftflsgfetft *»n»*«* feB« «a*axf4 to tto-*?e •d:f ;raal>n»t«6 &«t#oIXa bnm 

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t.Ht - ■"f-^.^BI A t!' v--«|f--» »t«»fcA •j[Xtt« 



IS 

teetlmonf, plainly reveals that the rulinge affected only particular 
anavers made Juit prior to the motions. At the end of Adams direct 
testimony the court denied plaintiff's motion to strike the entire 
testimony. The opinion ae to the causal connection was stricken, 
but on cz*oss->exaaination Adias* determination of the cause was gone 
into and there is evidence aside from the opinion from which the 
cause could be fairly inferred by the court* 

BURKE, P.J. DISSENTIHGJ 

Plaintiff sued for |600,00 and was awarded a Judgment for 
|M7»16, The court allowed defendant's claim of recoupment, thereby 
reducing the amount of plaintiff's judgment. In my opinion the 
proofs entitle plaintiff to Judgment for the full amount of its 
claim. The record is barren of evidence on which to predicate a 
recoupfflent« 






,ii»^ci*tifs oito»i:sn©o Xs^yjar sd^ ci as. nelatqo edT .Yfioicl^ae;r 

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iCi Jnsas^i/C. £s Sfi&'xawB saw 6ii» OO^COd^ -sot b&UB ^tltalApt 

»iilJ noXniqc xss ni •«'iiessi>«t a'tli^fll^Xq to lai9<MU eri? snXo&r&ft^ 
£ eJjsalJbs'xq oJ efoirfw no sen©E»ivs lo aamscf «1 Mo©»n bsSS .aXaXi 



42046 

WILLIAM JASSEN, 



320 I.A, 



-*^ O 



Appellee^ 



x 



,.*«**' 



7 APPEAL F^OM SlfPEI^rOR 
COURT, COOK COUKTY* 




MILK WAGON DRIVERS' UNION>. ^ 
LOCAL 753* OF THE IWTERKATIOl 
BROTHERHOOD OF TSA145TERS, 
CHAUFFEURS, SIABLEMEH AHD 
HELPERS OF AMERICA, HENRY IVEBSR. . X^ 
J, G, BOHNKEDY and THOMAS HAGGF-RTY, 
each individually and as mambers 
and President, Vice-President and 
Secretary-Treasurer, respectively, 
of the MILK V/AGOK DRIVERS' UNION- 
LOCAL 753, OF THE INTERNATIONAL 
BROTHERHOOD OF I^AI^iSTERo, CHAUFFEURS, 
STABLEMEN AND HELPERS OF AMERICA, 
Appellants* 

MR. PRESIDING JUSTICE FRIf^KD DELIVERED THE OPINION OF THE COURT « 
Milk Wagon Drivers* Union, Local 753* of the International 
Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of 
America, a voluntary unincorporated association consisting of 
abomt 5>000 members, and several individuals who were members 
and officers of the Union, appeal from a decree of the Superior 
court awarding the plaintiff, William Jansen, $1,240 with 
interest as "sick benefits" by reason of severe injuries sus- 
tained by him in the course of his duties as a milk wagon 
driver, necessitatini; the immediate amputation of his right 
l«g, whichf by concession of the parties, rendered him totally 
and permanently disabled and incapable of performing his duties; 
and directing "the defendants, and each of them, ^^*^ jointly and 
severally *** to pay unto the plaintiff the sum of Twenty Dollars 
($20,00) per week, commencing one week after the entry of the 
Decree herein for and during the entire period of his illness 
and disability," The Issues made up by the pleadings were 
referred to a master in chancery who, after an extended hearing^ 
recommended the relief decreed. Defendants' exceptions to the 
master's report were overruled and a decree was entered in 
accordance with the master's recommendations, from which 



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ni £)ois>dns Bjsw ©«ioeI) s i>aa IisXx;iaevo vxnm ^tcoqei a'laJ-Eiui 

rioliiw noil ^snol,tB£»fl9isiBoofi s'lajfeam adi il^Xw ©acftbiooofl 



«*2«» 

this appeal is taken, 

Jansen became a member of the Union February 24, 1925 
and was employed as a milk wagon driver from that time until 
his injury on January 18, 1940, He was a married man, aged 42 
at the time of the hearing, living with his wife and three minor 
children. Beginning in 1925 he paid dues to the Union at the 
rat9 of $12 per quarter, a total of $48 a year. In July I927 
the dues were raised to $18 a quarter, or $72 a year, and con- 
tinued at that rate. During the I5' years of his employment he 
worked successively for the Bowman Dairy Company, the Borden- 
Wieland Company and C, J* Wieland & Son. The Union by-laws 
pertaining to sick benefits and dues provide ttiat a member of 
the Union, in continuous employment for a period of ten years 
prior to the date of the commencement of his illness and in good 
standing for a period of six months prior thereto, is entitled 
to benefits in the sum of $20 weekly for the entire period of 
his illness. 

As the principal ground for reversal it is urged that 
the finding' of the master and the provision of the decree that 
plaintiff was in good standing for six months prior to the 
accident (which would have entitled him to the sick benefits 
awarded in the decree), are contrary to the manifest weight of 
the evidence. Proa the Union's records adduced upon the hearing 
it appears that during the period froa February 24, I925 t© 
January 4, 1940, Jansen paid his dues to the Union in the 
amounts specified in the by-laws, with the following excep- 
tions: he paid no dues for the last quarter of I927, none for 
the third quarter of I930, made his payments late during the 
second quarter of 1932, the third and fourth quarters of 1933» 
the second and third quarters of 1934 and the first quarter of 

1935; hfi paid no dues during the third quarter of 1935 but on 



i-» r* n^. ^- 



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dftf o;t lotiq sAiaom xla lol afli£iii3:ta *odo3 at ej^w I'iJtJ^flifilq 

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e^£?I lo MrtBi^&up diivol bit& biLtt »dJ ,S£^X to i»;ti8rp ianoost 

td <»oJ-i«jjp isTit 9At'bas K^l toeia^fTsjjp fcrtXd;f fics bnoo«e arit 

no ,twcf ^£:^'X to iftc^iBZjp Jbijtrivt aricf siitoi'fc itaib on fcJUq od i^£?X 



-> 

November 1 of that year paid $18, paid no dues during January, 
February and March I936 but on May 1 of that year paid $18, paid 
no dues during July, August and September I936 but on October 
30 of that year paid $18, paid no dues during January, February 
and March 1937 and was late in the payment of his last quarterly 
dues for 1939* liVhenever his payments were made later than 
provided by the by-laws the Union accepted the payments. Upon 
the record presented he was four $18 payments in arrears at 
the end of 1937* However, during 1938, instead of making four 
quarterly payments of $18 each, he made seven such payments, 
which were all accepted by the Union and credited to his 
arrearages. Thus, by the end of I938 he was but $18 in arrears. 

The gravamen of the contention advanced by defendants is 
that this rendered him a member not in good standing for six 
months prior to the accident on January 18, 194-0 , It appears, 
however, that on January 4, I940 he paid the Union $18, and if 
this amount had been credited on his one quarterly arrearage 
at the end of 19 38, his dues would have been fully paid. The 
Union accepted the $18 payment on January 4 but credited it on 
the current first quarter dues for 19*0, which did not become 
payable under the by-laws until January 3I of that year. 

It is xirged by defendants that subsequent to 193^ Jansen 
hp.d been told by the Union stewards "in case he got sick, he 
would be out the benefits;" that he had ample warning through 
a legend appearing on his receipts for dues that "under the law 
in effect January 1, I936, any member becoming delinquent is 
required to be in good standing six months instead of three 
months before he can draw benefits;" that he had been apprised 
of his delinquency to the extent of $18 and promised "to take 
care of it," but failed to do soj and that he admitted the 

default in the course of his cross-examination by defendants • 



^■v;*i;£aiiL«il. gxiltjub neiju wii v.ij&q ^Sl$ bX&q, iis»t i'ari.'t to X i^tfffievol 

fcisq ^Si^ Wisq ijssx ^iSrW lo I Xs* uo l^ucf ^£^1 iJartaM iiiajB xiei/icTs'L 

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XTUit^id^l ^xi»j3aaJ^ ^a^iub aejjJa ©n fiJUq ^81$ fcl«q issx ^»jE(^ "io 0£ 

a^S itfi&l •bh& ^low BtMms.&l sM •r#vaaeffiif ♦?£?! toI a»c£> 

J 6 aiAse^fia ex 3toPJ«Xj?jq 8X4^ irxCl: asw sxi 6®;tiis»s»iq ktot>Bi 9di 

^a^fiec^sq /is^e a&vaz ©cbi'i set ^/iosee 8X$ t© a;^as6nEJsq icXie^^£«i^P 

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11 *lfls -,aX* xiQisiW &0 blsiq »££ O^^i'^* T^JS^raagL no SmiS ^i&vmtod 

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&d^ «bisq igilxf^ fls»ii evs^ fcXjaow e»jtAfc Eld ^8£^X lo fens erld- <Jfi 

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ari ^jCt>l8 ^©8 «^ •sjss ^X" 8l»isw«;fa aolaB adt x^ blot a»»«f Mif 

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Bi^xiejL'pxuXsfe aniflioosjdf isdiasia xaQ '^d£?X ^X X'jawcuL ;t9«ll0 Ml 

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ftsslnqqB c^ecf iwsri ®£f ^afi'c^ '^jaJllsnscf wje^fc nso ail srrolecf sdtnoa 

sSisd- o:t" l)fJ8lHo^q fcaa 8X$ to ^as^tx© adjj jo;t xc-flenpfilXofi «lri lo 

arU i>©c^3-lri)i3 »rl $ss^ bns. fot ofc o^r bolX&t Ha^ *>^iX lo oibd 



counsel. The master, taking these circumstances into account, 
found that all of Jansen's dues were not paid on time as required 
by the by-lawi, that he was frequently late in the payment of dues 
and had on several occasions entirely omitted payment during the 
current quarters in which the dues became payable, but that plain- 
tiff paid and the Union accepted all dues from plaintiff, the 
total of which, when accumulated, constituted payment in full 
from January of I934 up to December 31, 1939, and therefore he 
was in good standing on January I8, 1940. We think this con- 
clusion is amply supported by the evidence. An examination of 
the dues records of the Union reveals that from January 1, I934 
up to but not including the January quarter of 1940, 24 quarterly 
dues payments accrued and 24 payments were made by the plaintiff. 
The dues for the January quarter for I94O were not due until the 
Slat of January, as provided by subsection of section 41 of the 
by-laws of the Union, and it was evidently plaintiff's intention 
to have the payment made on January 4, 1940, which was 14 days 
before the accident occurred, apply on the quarter on which he 
was still in arrears, Thomas Haggerty, secretary and treasurer 
of the union, who was empowered to accept and apply the dues ©f 
members in accordance with the practice and custom of the Union^ 
testified by deposition that for the period from January 193^ to 
January 1940 plaintiff had not paid "a single quarterly payment 
••*** on time." This constant irregularity in the payment of 
plaintiff's dues indicates that the Union, according to its 
practice, had applied the dues first to the retirement of arrear- 
ages and the balance, if any, to the current quarter, Jansen had 
never paid more than $18 on any single occasion, except once to 
cover arrears, and therefore there existed no overplus to apply 
to current dues which therefore remained delinquent,, Further- 
more, the $18 paid on January 4, before the accident, mwist have 
been intended to cover his arrears because he had never paid any 



lw^lJb*p<*9 ea BBili no l)^q ;ton. ©rtpw a«i/t> E'neEiasI lo XXb ifiri^ bmsot 

9&ub Jp iaBss^sq Btii at nijf&l xliaeapeit bbw «f *js£JiJ^ ^iWBl-'^d ©dd" x<^ 

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bsd neaoBXi »*i»^iBijp ^aeimuo odi od* «'^b tl ^©ansXsd ed;)- bOB aasA 

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TfXqqs Oct ax/Xqi9vo on hQiSiJtx& 9x^U aiotoiaric? fcnataiBdniB lovoo 

— isrfctua^ ^ctnaxTpnJtXeb benlsjiasi eiotsiedd doidw aex/b ^nsiixro o;t 

©▼Bd izvm. <^iaobloOxi Bdi eioted ,^ yi^sxhtsL no bXijq 8X4 «d;t ^eioci 

Vto bXjaq lovsn bad od saiTBoed eriBSTtB aid lavoo oi bsfcnsd-ni nssd 



-5- 

dues in advance, and the amount due for the first quarter of 
1940 was not payable under the by-laws until January 31, It 
would be highly inequitable to permit defendants to defeat 
plaintiff's claim through improper bookkeeping entries. Under 
the circumstances the master was justified in recommending, and 
the court in finding, that Jansen was a member in good standing 
for six months prior to the accident* 

Moreover, the Union never exercised any right that it 
might have had to forfeit the benefits to which Jansen was 
entitled under the by-laws, and therefore, under the established 
rule laid down by numerous authorities in this state, waived it. 
This is indicated by several circumstances, including the regular 
acceptance of dues for approximately 12 quarters after the 
alleged default of January 1937, notification to plaintiff of 
all general and membership meetings after the default of January 
1937 and up to January 194-0, plaintiff's attendance at, and his 
exercise of the privilege of voting at, all the general and 
membership meetings after the alleged default of January 1937 
and up to January 1940, and the failure of the Union to terminate 
his membership by suspension or expulsion. The law is clear that 
a trade union or benefit society may waive its right to assert 
the forfeiture of the benefit rights of its members. Metropolitan 

Accident Association v^ Windover^ 137 111. 417 | Conductors 
Benefit Association v. Tucker, 157 111. 19^5 Olszewski v. 
Pitchle, 287 111* Appt 452, And the manner in which an act of 
waiver is effectuated may be by express agreement or by such con- 
duct of the society as amounts to a recognition of the individual 
as a member thereof. In Conductors Benefit Association ^ supra, 
the court said that "The receipt of assessments after default in 
payment is a common form of waiver," In subsequent decisions the 
courts have repeatedly affirmed this doctrine. Drome old v^ Roval 
Neighbors, etc ., 261 111, 60} PuR^n v. International AssQclatlQD ^ 



'is neiiQup STt*irSL ad* l«l sstb itwoms wit fcn£ ,eonj3vb6 ctl eojcrb 

^&aebloT>& sriiJ oS rcoiiq ajrf.tnom xle lol 

ai3T? fteeaat. doliiv oi 8^il®n9(f sff;f d-ls'iiol o;t bsif svari Jrialin 

bsriBlXcfscTee ewii idiwx; ^©^oTrsterid' baa ,8WjaI-^cr Sil^ nebnir fe9l;ri:;fn9 

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acfd" rssits EieiisMp SX YXs^sitl:xo^qqs rtol eeab 'Jo 90£iB;tq90i>» 

lo IXtcJ-ixJtaXq o^ aol:}i^^i.tt&oii ^^£?X f^a'^^fi''^ "Jo :tXos'l9b b9a9XIfl 

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mid baa ^:ti; socisbnscfits g^lllcffilsXq ,0*^1 >cT:fijjnis"t od- qw bns ^£9X 

bfijs Xsasxiaa 9d:^ XXjs ^cfa asil^ov lo ©s^Xlvliq edi lo ©cionex© 

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^leaes o;t ctriglT e;tl ©visw xeia ^elooa Aliened rto aohw Bbsii & 

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lo i!is aQ doJL-iw ni iffotum mii huA ♦S^-^ ,qqA »IXI ^8S ,9lfloJlS 

-iioo riafcfi xd "lo ;fn9ai99i8ii aae-Kpcs td »d x^^ b9*«c:fo9ll9 ei 79t1jbw 

latsbiytkai &dt lo aolct Jtnsoo©^ s o:t ^ttwoaB bb x^'JtooB erii lo ii>ub 

taaaaa ^noUalaoag A ^llaafg btoJ s/rbaop nl 4lo©'f9ricr -isicfxaeffl s as 

Hi: d^Xwsleft lo^lfi e^AsjaeeMaa lo &qtBotit erfT" cfari.t bljse iixjoo $>xi;^ 

©xIj aiM>J:aXt>9b d^HAfirfwirctiMi nl "t^sviflw lo miol nonnaoo s al cfnamxaq 

Ifivofl .V M;,f|n^^ ,&ali^oob &tdi beoitrillfi xl^«^£«<19^ »Vfi£l ac^'xircc 

<acJ;Jij;5fifiMJ;«flfiJJLaB^^ tO^ ,XXI XdS < . 0d^9_,:8TOdWal9H 



etc.f 202 Ill« App, 308; laugner v. Kidd^ 29I 111, App, 13j 
Bayci V, Rango . 304 III, App^ 203; Harris v. Woodmen of tlie 
World. 374 111, 47. 

Defendants' counsel argue that these authorities are not 
applicable to the case at bar because the authorities apply only 
to late or delinquent payments but not to actual nonpayment of 
dues, and also because in this case plaintiff had knowledge that 
he was in bad standing and had been sufficiently warned. If 
the master and the court were correct in their conclusions that 
the $18 payment of January 4, I940 was applied, and should h&ve 
been credited, to the one delinquency existing at the end of 
1939# til® argument advanced would not differentiate the circum* 
stances from the facts upon which the many decisions cited by 
plaintiff were decided. The doctrine of waiver rests upon the 
recognition of a member's good standing by the continued accept- 
ance of his dues and assessments after default has occurred, 
and it would obviously be a denial of justice to permit a union 
or society to receive the benefits of a contractual relationship 
in the form of dues and assessments and still be relieved of its 
liabilities thereunder, Neither a trade union nor a fraternal 
bieneflt society is justified in regarding an individual as a 
member for the purpose of payment of dues while at the same time 
denying him the privilege of receiving sick and death benefits* 
Nor would the fact that Jansen had notice of his default and 
warning thereof, alter the circumstances. The union had the 
right under its by-laws to declare a forfeiture, but it was also 
at liberty to waive the forfeiture if it saw fit, and knowledge 
on the part of the member that he was in arrears would, in our 
opinion, not alter the requirement that the union, in order to 
assert a forfeiture^ "must abide inflexibly by the terms of its 
contract," Metropolitan Accident Association v> Windover . ?upra» 

The remaining contention of the Union is that under sub« 



\tl *qqA ,Iii X?R tl^m '^ immtt ^^ #«<IA .XXI S0£ ,,oli 
sffci- -ic jtsatboo^ .V «J:^^ii->H v£OS ,q«A ..XIX K»e ^2*aiS.jJLl2ls5 

,\.^ ,111 ^f£ ,M3SI 

I© bti» sad* ci'© siiJtd"aJtK© ^pstmi^^leb !ma BfH oi ^JbectiitsT:© a9»€ 
^l^ftiixjooo ssji ^Xiffilsb ^®d"l« 8;^£t®E£f;a0aei6 fens asiffi elri "io boxza 
B as iBjaSlvlisfLi «s gaifcusasi jai: l>»X*M8Art et x^isiujos j:llaco«tf 

&S^9Xiroxi3l ba& ^iit wjm! 4^^ It 9jiat l^'Xiol mii ©vlaw o;»- x^fiscflX is 
o^ ^8&7.o JiX ^iiolm; ail;f ^.ari* ;f<iwa0«l*fp9^ •ri;f -is^Xb *oo ,xioXfiXqo 



-7- 

section of section 42 of its by-laws, Jansen was obliged to 
pay dues for one quarter after suffering disability, and 
defendants argue that since he never made this payment after 
the accident he is absolutely precluded from receiving the 
benefits to which he claims to be entitled. It appears from 
the record that the CTnion unequivocally declared on February 1, 
1940 that it would refuse to pay plaintiff any sick benefits and 
thereafter did fail to make any payments in accordance with its 
by-laws. Under the circumstances it would have been useless for 
Jansen to make the April quarterly payment of I94O and he was not 
required to perform a futile act and go through the idle form of 
tendering performance when the Union had indicated that it would 
not fulfill its promise, Scott v, Beaehf 172 111, 273; Lurie v. 
R ock Fall Manufacturing Company, 237 111* App, 334; Willis ton 
on Contracts, Revised Ed., Vol. 5# Sec. I296, at p, 369I, De- 
fendants also complain of that provision of the decree which 
directed them to pay Jansen "Twenty Dollars ($20,00) per week^ 
commencing one w«ek after the entry of the Decree herein for and 
during the entire period of his illness and disability," and they 
say that this amounts to a provision that he is to receive sick 
benefits for the rest of his life. We perceive no reason why 
plaintiff should be compelled to file weekly successive actions 
at law. Such relief would be utterly Inadequate and he was Justi- 
fied in filing a complaint in chancery to avoid a multiplicity 
of suits. The decree does not award him sick benefits "for the 
rest of his life," but merely directs defendants to pay him the 
SOB of $20 per week for the entire period of his illness and 
disability, and reserves Jurisdiction to preserve the future 
rights of the Union* 

We find no convincing reason why the decree of the Superior 
court should not be affirmed, and it is so ordered, 

DECREE AFFIRMED. 
Scanlan and Sullivan, JJ«, concur. 



muit enaecrqB tX ,i&«iJjiun8 ^ki oi" a.aiJUIo ed rfoMw o;}^ s;fll«adcf 
^I x'^ajyT:«f«f fto fe«*£tilsefi xijt«»©vii/p®fljy aoinU arid' *jMii fcioosTj: 9di 

lot saaXSBU a«^ »v.*cf Mirow 3"! assnECfeiaifaiiio ?iij , vsX-xrf 

;^on «BH ad tee Q^i to &n^iss.&q ^Irts^rfBijp XtT:qA exij eiU^i oj nsenBL 

lo «raol #lfci ari:^ jdgijoiricr og Ms i'OB sllissJ a aiioliaq o:J fe»ilJ3pen, 

blE&i? ^i ;ffljf;t fifths slfjfil Bad aolnU 9di aadw sanaat'iolieq gniiebn*^ 

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«©^£J:XXB! t*££ ,,qqA ♦XXI t£S ^-^g gflamo O mliiJitisluaM lle^ jfaoH 

-50 ,X^d.>; . •— - r , - ^ r , ; - ^sivBiSnoO no 

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X&d;i Ms »%t;JXXXcfB£i.t) fect^ fi seiiXXX kid Tto l>oii©q e^Wc* ejtfc? anlii/B 

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,aoXnU «rii lo ad-riBii 
iol«i0c|ifa c«i:f ^© s.>»is©b ©rli -^rf* cosasi .^fxionJtvnoc oa bait sW 

.fe«rj€'fe'io ot «1 rfi fens ^hanrillljo »<f :fofl bXjuoria frsmio 



^^ 



32 






X 






42549 

DONALD KOUBA. a minor j, 

fcy ROBERT KODBA, next ^-^^ } ^,^' 

friend, ^nL :.---"^'"" 

Appellee. ...^..^^.-"-"^^^''^T^^^^ FROM SUPERIOR dQPRT, 

CITY OF CHICAGO, a Municipal ) ^,^ - ^^^ r , ,,^ 

Corporation, and IRIVIN FINK, ) T''''yd^ j M /} n 

Appellants • ) // \> I (J 

MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COORTs, 

While running along the east sidewalk of Kedzie avenue 

where it intersects an alley immediately south of Cermak road 

in the City of Chicago, Donald Kouba, age nine, ran into ©r was 

struck by a city garbage truck emerging from an alley toward 

Kedzie avenue, and was severely injured. His suit for damages, 

brought by Robert Kouba, next friend, resulted in a verdict and 

Judgment for $22,500, from which the city has taken an appeal* 

Its principal contention is that the occurrence was an accident 

for which the city is not liable, because it resulted from the 

carelessness of the plaintiff in running into the side of the 

truck, which was being driven with reasonable precaution at 

the time and place of the accident, consistent with the safety 

of pedestrians and other vehicular traffic, and therefore the 

court should have either granted defendants' motion for a directed 

verdict or entered Judgment notwithstanding the verdict, and in 

any event should have granted a new trial on the ground that 

the Jury's finding was against the manifest weight of the evidence. 

The accident occurred about noon of August 29, 1941. 

Donald, with a girl named Connie Miller, had gone to the Kedzie 

Avenue Department Store near Kedzie avenue and Cermak road. In 

leaving the store he ran south along the east side of Kedzie 

avenue toward an alley some 15 or 20 feet away. Upon reaching 

the alley he either ran into or was struck by the city's truck. 



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-2- 

which was moving west in the alley toward Kedzie avenue. 

Donald testified on direct ixamination that as he took 
a step off the curb "a big truck came out of the alley and hit 
me, I could not see down the alley because of the building 
there, I saw the truck coming after I stepped into the alley, 
but it was too close up, I couldn't get out of the way. I 
tried to step back, but the bumper knocked me down before I 
could step back, I lust took that one step off the curb. I 
was walking fast to catch up with Connie because I thought 
she would go ahead. Just before I stepped off the sidewalk 
to cross the alley I did not hear an automobile horn blowing, 
♦** After I took the step and saw the truck it was halfway 
out of the alley. It was moving. The bumper struck me first 
and knocked me," On cross-examination he testified that "When 
I got to the alley I didn't stop to look to see if anything was 
coming, I just kept on going." Later, on redirect examination, 
he stated that he had looked down the alley as he stepped, "I 
could not see down the alley while on the sidewalk, ^lien I 
stepped down the truck was on my left. In trying to get out 
of the way I made a backward movement," Onrecross-examination 
he testified that "The truck was halfway between the building 
and the curb," In response to the question, "How far to the 
left was the truck?", he first answered "I don't know," and 
then said that "The truck was right in front of me." 

Another witness, Helen Herrick, testified in substance 
that she was south of the alley, "a little v/ays past the store 
front of a big building on the east side of Kedzie avenue. The 
weather was clear and the streets dry, *'--5^- Vvlien I first saw 
this boy [Donald] he was on the sidewalk about fifteen to 
twenty feet north of the alley. ^"^ The alley was between 
the boy and me. The sidewalk is about two inches above the 
level of the alley on both sides, *** I saw the truck as It 



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-3- 

T»as approaching the place ^/here the accident happened, -"^*^ When 

I first saw the truck it was in the alley, it was moving. It 
kept right on rolling out of the alley. The truck did not oome 
to a full stop before coining out of the alley. ^^* \Vhen I saw 
the truck moving and the boy running I just hollered out, look 
out, look out. All of a sudden they came in contact together, 
*** Prom the time I first saw the truck before emerging from 
the alley until this event took place it did not come to a stop. 
When I hollered, back up, the truck backed up **^. I could see 
the boy but not plainly in what position he was in, he was on the 
ground in the alley," On cross-examination Mrs, Heprick testi- 
fied: "I would not knov/ how far the truck had progressed beyond 
the edge of this building when I first saw it, -'^-'^ It was coming 
out going slow. The next time I saw the boy he started to run 
toward the alley. The truck was coming out at the same time, I 
would not say the boy was running very fast. He was just running, 
*** V/hen the truck and the boy came in contact with each other 
the front of the truck was about half way between the curb and 
the building. The sidewalk there is about ten feet wide, I 
hollered »look out, look out« and lifted my hand. That was all 
over with already, the truck had gone past the boy, I couldn't 
see the boy any more," When asked how long after she hollered 
the truck came to a stop, she answered, "It just stopped right 
there, I don't think he had any idea he rolled anything over," 
Counsel then asked the witness whether she had any idea as to 
whether the boy was struck by the truck or slipped under the 
truck, and she replied: "Well, I think he was struck by the 
truck, I would not knov/ for sure, I would not say I am positive 
to the fact, because I was on the other side of the truck," She 
further testified that she did not know whether it was the front 
bumper that struck Donald, because "it seemed like they came in 
contact together," 

Jim Kluppal, the only other occurrence witness on behalf 



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«>^x■,W^.^/< 



of plaintiff, testified that on the morning of the accident he 
was repairing a house at 2215 South Cermak road and was standing 
in the alley about I3C feet west ©f Kedzie avenue, "I saw the 
garbage truck going west. -^^^^ Ihen I first saw the truck it 
was about half way down the alley, the next time it was across 
the sidewalk, it was moving at that time, I saw a boy running 
a slow run. At the same time I saw him hit the truck * The 
right front wheel came in contact with the boy. When the truek 
eame in contact with the boy it stopped," When asked to describe 
the accident, he replied: "I see the boy running. He hit the 
truck. The truck is stopped, it is coming, sc«ne guy and pick 
up the boy, and take away. The truck standing at the same place, 
coming the coppers. Vi/hen they pick up the boy he was on the 
ground between the alley and sidewalk. The space between the 
truck wheel and the sidewalk was 2-1/2 or 3 feet, I was too 
far away to see whether any part of the truck ran over the 
boy, *^^ 1 am able to judge the speed of the trucks when I 
see them moving. At the time the truck and the bey came to- 
gether the truck was moving between three and five miles per 
hour, that is all it was going, slow," 

As against this evidence defendants produced the driver 
of the truck and four of his helpers. Irwin Fink testified that 
he had been a licensed chauffeur since I927 and had been driving 
trucks since that date. On the morning of the accident he was 
employed by the City of Chicago and was driving a conveyor truck 
which he described as being in good condition, with four wheel air 
brakes that were in good working order. Toward noon he was pro- 
ceeding west in the alley Just south of Cermak road. He had a 
crew of four laborers and the section foreman. After collecting 
garbage in the alley, which was thrown in the conveyor in the 

back of the truck, he proceeded west in the alley toward Kedzie 
avenue. Nobody else was riding in the truck at the tlme« 



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-5- 

"As I proceeded west in that alley and ,1ust before I arrived 
at the sidewalk on Kedzie avenue, I was driving three or four 
miles per hour in first speed. Just as I v/as approaching the 
sidewalk on the east side of Kedzie avenue I blew the horn and 
stopped as I was getting to the edge of the alley ^ust before 
I hit the sidewalk, I blew the horn about fifteen feet in the 
alley away from the sidewalk. I tapped it several times, I 
always do. On that particular morning, that is just exactly 
what I had been doing. When I got to the sidewalk at the end 
of the alley, I came to a stop, blew my horn and put the truck 
in first gear. After I looked both ways I proceeded out of the 
alley. I looked north and south, I looked left and then right, 
I could see to the north a couple of feet away from the building 
and beyond that it would be a curve of about fifteen degree 
angle. Before I started up my truck I did not see anybody 
coming towards me. I started up and was about seven feet out 
of the alley. I made a dead stop, I heard some commotion, 
some one holler. The truck rolled a couple of feet, then it 
stopped again. Somebody said 'back up,' I backed up a couple 
of feet, stopped the truck and pulled on the emergency, jumped 
out on the left side and ran around to see what was wrong, I 
thought that the truck caught fire or something. Then they 
said I hit somebody, After I got around the side I saw a boy 
leaning up against the brick wall, the building line on the 
north side of the alley," Fink further testified that when he 
e&me to a stop as he approached the east sidewalk of Kedzie 
avenue, the front end of his truck extended about two feet 
beyond the building line toward the sidewalk, 

Joseph Kocanarle, one of the helpers, testified that he 
was walking about ten or fifteen feet to the rear of the truck 
as it approached the sidewalk on Kedzie avenue, and that he 
heard Fink blow the horn two or three times and then saw the 



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9di wse n©fl;t fios tiuatt oeidi 10 oif;t fiiori ©ricf woXt5 ini"^ Jbisarf 



-6- 

truck come to a stop. His testimony as to the position of the 

truck with respect to the sidewalk is rather uncertain* 

Barney Urzndowski, another member of the crew, testified 
that he was walking about 20 ©r 25 feet behind the truck and that 
he heard Fink twice blow the horn about five feet from the side- 
walk; that when the truck got to the sidewalk it stopped and 
then started slowly ahead; that he then noticed some eomraotion 
in front and saw the driver holding an injured boy in his arms* 

R« S, Vrba and Prank Vrchota substantially corroborated 
the evidence of the other members of the crew with respect to 
the sounding of the horn and the stopping of the truck at or 
about the building line as it emerged from the alley toward 
Kedzle avenue* 

Upon careful consideration of the evi ence adduced upoa 
the hearing we are satisfied that the court properly denied 
defendants' motions for a directed verdict and for Judgment not- 
withstanding the verdict. The law is well settled in this state 
that it Is improper to direct a verdict for the defendant where 
any evidence, taken as true, together with the most favorable 
Inferences that can be drawn therefrom, tends to support the 
allegations of the complaint and to make out a prima facjLe case 
for the plaintiff. And the same rule applies to a motion for 
a verdict non obstante veredicto ^ Houdy v . New York j ^ C. & St^ 
L^ R> Co,, 317 111. A.pp. 154; Capelle v. Chicago & N. W. Ry > Go.^ 
28c 111, App^ 471, In considering such motions the trial court 
Is not at liberty to consider the preponderance of the evidence 
or the crec'.ibility of the witnesses. The only question which 
It has to determine is whether there is in the record any evi- 
dence which, if true, fairly tends ^o prove the allegations of 
the complaint. The weight to be given the testimony Is a question 
for the Jury, 

However, these considerations do not apply to the contention 



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eiS'diT :tEL&btv::'^' _ . . '_. • . j-qoiqerl ax. o.t jisxici" 

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1 

-7- 

that the verdict was against the manifest weight of the evi- 
dence, Since the cause will, in all p*obability, have to lie 
retried we have refrained from any further discussion of the 
evidence than was necessary for a consideration of the issues 
involved, and no tiling that we have said in this opinion is 
intended to prejudice the rights of the plaintiff upon another 
trial. However, from a careful reading of the record we are 
of oginion that on the question of defendants' negligence, 
the verdict is contrary to the manifest weight of the evidence, 
and therefore the Judgment of the Superior court is reversed 
and the cause is remanded for another trial. 

OJCJDGMENT REVERSED AND CAUSE 
REMANDED FOR NEW TRIAL. 

Scanlan said Sullivan, JJ«, concur. 



mT od^ 9vac[ »\;? Hi dado's® lis iii ,|XJtw eex/eo «d^ soxilo .eaasb 

scI. .aaaoeib nad^iul %ns soil bsnlarxl©*! avsd 9w I)»irr;t9i 

asif fioi:d-j3i»Mei -^1 Y'^^J^saaaosn saw aatl^ eonabJrve 

>i/ii5go airi jari^ snlriioix fca* ^Jbft-vIovcJ: 



*2658 320 1. 






PEISR CHRISTIAN, ^'^^^ 
Appellee, 

▼• 

VIRGINIA MS CmiSJUW, 
Appellant , 



"AiP^I. MOM GIRCtJIT 00 
T COdK,.COUNTy 



;uiT GSJUirr- 



MR, PRESIDING JUSTICE FRIEND DELIVERED THE OPINION^ THE COURT* 

In November 1942 Peter Christian filed a complaintx^ 
the Circuit court seeking a divorce from his wife Virginia Mae 
Christian on the ground of adultery. Personal service of 
suMiiOns was had on the defendant, returnable in December 1942« 
Thereafter, plaintiff moved for the care, custody and maintenance 
of the minor children born of said marriage, and January 11, 
1943 the chancellor entered the following order: 

"On motion of Charles A. Boyle, solicitor for plaintiff 
Peter Christian for custody care and maintenance of the minor 
children of the parties hereto, due notice having been given 
and said motion coming on to be heard on the contested motion 
calendar and the court having previously ordered an investigation 
by the Social Service Department and having heard testimony 

"It is ordered that the plaintiff Peter Christian be 
and he is hereby given the care, custody and maintenance of 
Frances Christian, Peter Christian and Walter Christian, minor 
children of the parties hereto, until the further order of this 
court, and the plaintiff agrees to maintain said children in a 
suitable Catholic Home for Children, 

"It is further ordered that said cause be and is hereby 
continued to Jan, 19-1942 as a motion of course," 

The record presented is so incomplete that it does not 
include a copy of the bill of complaint nor indicate whether 
plaintiff »s motion, upon which the foregoing order is predicated, 
was oral or supported by petition, or whether plaintiff relied 
upon the allegations of the complaint, which may or may not 



.YTHtJOO SCO 









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aolioa 5©cfEs?d-jG[oo eri*t no fiiaeri 91/ o:^ no grtissoo aotiom bl&z boM 

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©cf RBtiBltdO 19$ o^ lllSalsilci Bd;} SadS b&iebio si cM' 

lo QOUBnccfaliasf Ma ^fcoc^auo ^^ns© ©rid" navia xcf^-isii si ail baa 

ifmlm ^flfiJtctajtidO as^XaVf fena H3Jtcf2iiriO is^s^I ^,/iftlialiriO aeonsil 

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,n»T£IJjlO tol dooH olloficfaO eldfld-Jti/a 

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jait -^i:-; ':o Ai-.-^i xlolriw ,:^nl.*5lq*soo mii Id ^noli&■^&LL& Bdi noqjj 



have been verified. It further appears that when the motion was 
made, defendant had not answered the complaint, the parties 
having subsequently stipulated that the time for the filing of 
defendant's answer be extended to and including February 1^, 
194-3. Neither does it appear whether defendant filed an answer 
to any petition that might have been presented in support of 
plaintiff's motion. All these matters are left entirely to 
conjecture. 

As heretofore stated, defendant was given until February 
15 to answer the complaint, but from the scant record before us 
it does not appear whether such an answer was filed. However, 
on February 24, 194-3^ defendant presented a petition wherein she 
alleged, in substance, that she was the defendant and cross- 
complainant in the case; that she had on February 15 filed a 
cross-complaint for divorce, seeking, among other relief, the 
sole care and custody of the three minor children, and reciting 
the order entered by the court on January 11, 194-3 awarding the 
custody of the children to the plaintiff. She further alleged 
that at the time of the hearing on plaintiff »s motion "she was 
mentally upset, and did not understand the full meaning of the 
questions put to her in connection with the custody of the said 
children; that since the entry of said order, much evidence has 
cone to the iaiowledge of your petitioner as to the welfare of 
the said minor children," and she statedthat the children had 
become ill upon learning that they were to be taken away frcaa 
their mother, and were under the care of a physician who had 
attended them since their birth and who had advised that If the 
children were taken from their mother they would become seriously 
ill. She alleged that she had cohabited and maintained conjugal 
relations with her husband since the entry of the order of January 

11, 1943 and prior thereto, that plaintiff admitted he did not 
believe the charges and allegations made in the complaint and 



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ex; ©TOlecf Mooci jii£,C£ -ai:" gciI ri/a ^itrilslqinoo oxf;J tcewaxts od' ^L 

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BdS jlsllsi -i^iiitb §£101113 ,jifil2l9»a ^90ioytb lol d-jcil si qmoo- a 8o to 

ScIjIoj' ^'letJbXlflo torilm ©eiriii ©rict lo xboiRvo haR siao ©Xoa 

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a«w 9ils»' Gol;toffi B'llX.i-fllsXq flo gcl^^srl axict lo ©ffil;t sdi is ^ari;J 

Slid- *io gflliiBe ocfJ' Mjs;t8t9Jbifjc^on fcib bns ,.t»Eqj/ x^L&iaesL 

Jbise eilJ^ lo xboi&nv '^.lii dcJ^iw nol:to9nnoo nj: rsA oS iuq 2iioXtf2»irp 

83d 9oa96lT0 ,dox;iu ,i9Jbio iBlsfi lo "x*t^09 sdi soflUte :fj8di ^n&rtJbXlrio 

lo anslXaw 9ri:t' o;t BiS •ie£ioXcf£?5»cj tuox lo E»s5©JSroxiii airi:f oi waoo 

bsd asibiliio edi cfsri.+bsitte^a ^ria fins "^flsiBXlrfo loniat Mbb orict 

fflotl -^Bws fl^2{«;t s«{ ocf @i©w xtri:^ cfad..' salriiuaX noqu ill saiootd 

«xlf tJt .tar/:* heaivfefl Lari oxlw bna xi^tild liedi soflXa mBdi beba^i^a 

Y.XaroiT:92 smooecf fcXoow y^&di inricfoei tierl^f jaoi^t n9^c4 e-iew nsibXlflo 

Xasfctni^r ivjuisd-nX/ssr fcna b^itd&doo bfsd ©de ^6ri;f fcsssXXs aula ,XXi 

Xi&S!a&l lo leMo Bdi lo y^*«s sd^ ©oiiJta btisdzud rr©d rf^Xw Eflol;ffiXsi 

crofl bib 9d b^iilmba lliJnXjaXq ^fificT ^oisi^di lo.ticr ^f^* C.>?X »XI 
i»«U8 ;tiilaXgxaoo sitt ni ©fcsaf znotia^^llB ba& e. ;.. ._. ...^^-j 



-3- 

knew that defendant "could not, and did not, commit adultery 
with anyone." There are further allegations that plaintiff 
is a strong, healthy and able-bodied man, well able to support 
petitioner and the children, and that she is without funds to 
employ counsel; and she asks that the order of January 11, 1943 
be vacated and set aside, that she be awarded the care, custody 
and control of the minor children, that a suitable allowance be 
made for her temporary support ana that of the children in accord- 
ance with the provisions of the statute, as well as a suitable 
allowance for her necessary expenses in conducting the suit, 
including attorneys' fees. 

The petition was presented to the court on the 24th of 
February, 1943# and the following order was entered thereon: 

"This matter coming on to be heard upon the verified 
petition of Virginia Uae Christian defendant, to vacate the 
order entered on to wit Jan, 19, 1943 awarding the custody of 
the minor children to the father, due notice having been given 
and the Court having heard the argument of Counsel and being 
otherwise advised 

"Doth order that leave be and it is hereby given Henry 
Mm Tufo to file his appearance as additional Counsel herein, 

"It is further ordered that the petition of the defend- 
ant and the prayer thereof be and the same is hereby denied." 
This appeal is prosecuted to reverse the order denying her 
petition. 

The principal ground urged for reversal is that her 
petition of February 24 was not answered and that the order 
denying it was entered without affording her a hearing on the 
merits. Plaintiff's counsel seek to justify the order ^y 
contending that the court considered the evidence presented 
at the hearing on plaintiff's original petition, was fully 
advised, and exercised its sound discretion in awarding custody 



, ■:^ocf«.sIde fcxce "tfl^las'ri tgfioi;?^ ^ eJt 
.„^ , .. ..: . ^ii£)ibils'. ij :.rf^' bAiB i©jaol^W«q 

.;ii*®l »a'^JGLlOj-;tS gnxf r^!''-frJ■ 
iU-Jicj2 ax oi£i::c; tilJ- &fiJS ed ^osi«»d:f i^x^'^Lq otii tas :tii3 

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^X ^ '".arii:^!:'!© a • lUtdaifiXq no ^iisori ©rii ;fs 

tiJOtart? sKiij'iswB fti aold-9^ocif> fcioKie a;tl fceaXoosx© fens ^f)«8iTi>j6 



of the children to the plaintiff on January 11, 1943. 

The order entered on the last-mentioned date was prepared 
by counsel in longhand and, like the record presented, is defec- 
tive in several essential respects. There is nothing before us 
indicating that testimony adduced upon the hearing January 11, I943 
would have justified a finding that defendant was unfit to assume 
the care, custody and maintenance of the minor children, and in 
fact the order makes no recital whatsoever as to her unfitness. The 
report of the investigation by the Social Service Department is 
not incorporated in the record, even though it was competent evi«- 
dence, and the order does not recite the findings of that agency^ 
nor the recommendation made, Moreover, defendant's petition of 
February 24 asking that the prior order be vacated contained 
allegations of plaintiff's admission that he did not believe 'toe 
truth of the charges made in his complaint and knew that defendant 
"could not, and did not, commit adultery with anyone," Under the 
circumstances she was entitled to a hearing as to the merits of 
her petition and the record does not indicate that she was afforded 
that opportunity. Besides asking for the vacation of the order ©f 
January 11, 1943, she sought custody of the minor children, suit- 
able allowance for her support and that of the children under the 
statute, and she further asked for necessary expenses incurred la 
conducting the suit, and attorneys' fees. The order entered denied 
her all these requests. 

To deprive a mother ©f the custody of minor children upon 
a record which does not disclose a full opportunity to be heard, 
and especially under an order which fails to disclose that any 
evidence was adduced indicating that she was an unfit person to 
assume the custody and control of the children and no finding in 
the order that she was such a person, is too drastic a procedure 
to be affirmed. 

Therefore, the order of the Circuit court of February 2^ 



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lo aGtiliQq e'diijsfioelsb ^^isvoonoM ,sifcBfa noJtdfiJbweflioiooe^ edi loa 

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.s^«exrperc «esi^ XXjs ^ed 

rjo.^i^ li-^ .,>-■ A. i *.,;:" lonlai lo v.i.u., ..vu fiij 'j:o i^iyois £ evlnqob oT 

'isRfi eo' od x^iiu/d-^oqqo Xljal « ezolcslu ioa R90b dslriw fcioo^n a 

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o'J aQ&niDq itlaa an saw &d» d&sii ^^alS»9ti)al bB^sjbbB aew »«£t«^vs 

' sciivni"^ on ha& a^'iblXda Bd^ lo loiinoo ba» x^otfejuo eri^ MCVfis 

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.besulll* ecf o^ 
<- ^'X^l'iilf"''' d ii/D^iO »di lo isMo e*ri;l ^aioleie.Ti' 



-5- 

denying her petition is reversed, and the oause is remanded 

Tflth directions that plaintiff be required to answer the 

petition within a time fixed by the court, and that such 

further proceedings be had as are herein indicated, 

ORDER REVERSED AHD GAUSS RSMAKDED 
11TH DIRECTIONS, 

Scanlan and Sullivan, JJ,, concur* 



1 

b^batimBTi el ©ejjBt> adit ba& ^besii^vai al colili&q isd :gtikxnBb 

* 



42689 

THB TRUST COliPAHY OF CHICAGO 
Adndnistrator of the SstaW'^ 
of AUGUST H. BnAATZj^.,^feased, 




««!«® 



Appellee, ) APPEAL mm ClSCUlf 
^Jt*,.^^^ ) COURT, COOK CO|mTY. 




mW-Ei 3, GUMTTNGS and miR§4.a*, ) ^ >v <■ 
^f^^N, as Receiirers, etc., """'^"^--i. ^ "'"^ 
"et al., doing business as T 

CHICAGO SURFACE LINES, ) 

Appellants , ) 

MR« PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OP THE CfOtRlT. 

Plaintiff bro\ight suit under the Injuries Act to reco^irer 
damages alleged to have been sustained by th^ next of kin of 
August H« Braats, who was struck and killed by an eastbound 
street car on kontrose a\»enue near the crosswalk of Damen 
avenue, Chicago, Trial by Jury resulted in a verdict and 
judgment for $2,500, fpoEi which defendants hav« taken an appeal^ 

It appears from the record that li'ontrose avenue, running 
east and west and 42 feet 6 inches in width, intersects Damen 
avenue, which is 38 feet 4 inches wide, at right angles. Street 
car tracks run along both streets and stoi>-and-so lights ar« 
located on two corners of the intersection, 

Bpaatz, aged 83, lived with his daughter and her husband, 
Ruth and Salter Norden, in a home owned by them on the east side 
of Damen avenue about one and one-half blocks south of Montrose 
avenue. He had retired from any active occupation and his sole 
source of income was $27 old-age assistance, yibout 4:^0 in the 
afternoon of December 11, 1940 he left the Norden home and walked 
north along the east side of Dairien awenue toward the J.ontorse 
avenue intersection. His daughter had told her husband, Walter 
Norden, "to go out and get him," and Norden testified that in 
an effort to overtake hiE he had proceeded to about 12? or 15O 
feet south of the Intersection when the accident occurred. 
According to his testimony he observed Braatz about the time 



^ ... ;._.1.I)A 









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^almwi ,!9Jjn»vs »BO^^Jsoa iadd- bnoo«^ sxfd^ motJ uiBoqqs ^1 

amines a&OBBi«i£i£ ^diblw nt asxConl d ^^ost S-K tes ^t»w fcn« je«9 

^ ao IS 09 iio:t at «dd^ lo aisflioo ow* no bdj-sool 

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9B0itao 1 1o xi:fxroE silsol^ lI^<-eao fiois sao SisodB 9smev» ammQ lo 

elos bM haa aolS'^quooo fiVtSos -^nfi ato^l bellies Jbad sH •MBPra 

&di aX Oii^ ipodn «doa«^at^es f>S»-f)Io ^$ sbv Aaodcl lo Boruot 

k93(l£v EuuB ftaod nefcioi? ndS J"**! «rf O^^X ,11 iftrfatsooC lo nooins^la 

99ioSao}^ Bdt bismoi 9tatmt» ammXl lo eblB iese mAt ^/boLb dinoa 

i*Sl»^ ^bnA€zssd tetl Mod bfiri ^«»di!sxfj8b alH .noWoeaiediil MnffYA 

fiJt dBrid fcsiiliiB©^ jiefcioH has "^olM d»i Iotb itn os o;^ ,n»f)TO« 

0^1 10 ^SI Si^Qda, OS b9b»iiooiq bad md aild •icd^ftvo oS c^iollt om 

,6©THJooo dfl»i)±r>o.i Slid n«ifw aoWs>©e'r»dal Mid lo riduoE i9«l 

MLfc;^ drfd dirorfB a»x)B<x«! bd^-rstoTo sd xnoatds^d alU od ^albnoioA 



-2- 

that he reached the curb before crossing the intersection. He 
stated that Braatz hesitated, glanced west and east, and then 
stepped down from the curb and proceeded to walk north; that he 
(Norden) looked at the traffic light and observed that it was 
green for nor th-and— south traffic and remained green until 
Braatz had reached the space between the two street-car tracks 
on Montrose avenue; that there was an eastbound street car 
waiting on the west side of the intersection and also a westbound 
street car waiting on the east side, with its front end approxi- 
mately even with the east building line; that the westbound oar 
started on the yellow light when Braatz was about two feet from 
it; that he then observed Braatz turn and start for the south 
curb, angling somewhat to the east, and as he did so Braatz 
looked to the west and made several lively steps, but the right 
front end of the eastbound street car struck him; that after the 
impact the car stopped about 30 feet east of the crosswalk, 
probably 15 feet from the east building line, with its rear end 
about two feet east of the northbound track in Damen avenue; 
and he stated that he heard no gong sounded by either street 
car. Following the accident Braatz was taken to a hospital 
and died shortly thereafter. 

Although several witnesses testified for defendants upon 
the hearing, the only actual eyewitness to the complete accident 
was Anton Bollinger, the motorman of the one-man eastbound street 
car which struck the deceased. He was called by plaintiff under 
section 60 of the Civil Practice Act (par. 184, ch, 110, 111* 
Hev, Stat, 1941) for cross-examination, and no attempt was made 
to recall him to the stand when defendants were putting on their 
defense, Hollinger had been employed by the Chicago Surface Lines 
for approximately five years, for two of which he served as motor- 
man. He testified that "I wouldn't say the car struck him. The 
right corner post of the street car touched his arm as the car 



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-> 

stopped. It touched his left arm* He was facing noFth, His 
hands touched the doors of the car as the car went past him, 
coming to a stop. There ^as no sound from the impact. He was 
not knocked down. He ended up in the street. He fell do-im. 
The street car touched him as it stopped. He sort of stood there 
for a moment or two, and then he fell ouer on his side, I opened 
the doors and got out and picked the man up, I would say he was 
bleeding slightly. It was the right side of his head, I don»t 
say it was smashed in. It didn't look like it, I could not see 
the bones protruding. It was all bloody," As against this evi- 
dence Norden had testified that he heard an awful thump as the 
car struck Braatz and that the right front side of his head was 
crushed, Hollinger further testified that there was no other 
traffic at the intersection at the time of the accident, that 
the streets were dry and the visibility good; that when he first 
saw Braatz crossing Montrose avenue, the street car which he was 
operating was about to enter the crosswalk on the west side of 
Damen avenue; that Braatz was standing on the curb and when the 
street car was about even with the east crosswalk, Braatz stepped 
into the street from the south curb and walked north into 
Montrose avenue, "Vftien I saw him stepping from the south curb 
down into the street, I sounded the gong and applied the brakes, 
I knew then there was going to be an accident. The width of the 
street between the south rail of the east bound tracks to the 
south curb is about 5 feet, When the deceased stepped off the 
curb he was about 15 feet, diagonal, from my street car. He 
continued walking all the time until the impact. He was walking 
north and looking north. &y car was making a noise and I was 
clanging the bell and applying the brakes and he kept looking 
straight ahead. He didn't look in my direction at all. He kept 

on walking," 

Plaintiff's contention that Braatz had the green lights 



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is aniply sastalned by the evidence, Norden testified, and It is 
plaintiff's contention, that after Braatii had entered upon the 
tracks along Montrose avenue, the westbound street car which had 
come to rest on the east side of the intersection, started with 
the yellow light and thus prevented Braats from continuing north- 
ward; that when he was cut off froia proceeding northward, he turned 
around and in trying to reach the curb from which he had started, 
h« was struck by the eastbound car operated by Hollinger, Defend- 
ants denied that there was any westbound car at the intersection 
iBnr.ediately preceding the accident, but this conflict in the evi- 
dence was presented to the jury as an issue of fact, and the cir- 
cumstances leading to the accident as related by Norden are at 
least as reasonable an explanation of the occurrence as any other 
thecxpy. Upon the record presented we would not be justified in 
holding, as defendants contend, that the verdict was against the 
manifest weight of the evidence, All the facts were presented to 
the Jury and there is ai.ple testimony to sustain the verdict. 

Defendants* principal other contention is that the damages 
awarded are excessive. Their counsel say that damages recoverable 
under the Injuries /ct for wrongful death must be confined to 
pecuniary loss sustained by the husband or wife and next of kin 
and that all other elei.snts of damage abate with death. It is 
argued that since Bpaatz*s sole income was $27 a month and his 
life expectancy at the age of 33, according to the American 
Experience Table of Mortality (41 C, J, 2l6) was only 3.39 years, 
the Jury was not warranted in assessing more than nominal daaiages. 
The undisputed evidence is that Braatz, although 83 years of age, 
was in excellent health at the time of the accident. He had no 
noticeable infirmities, his hearing, eyesight and memory were all 
good, and he had not required any medical care for many years. 
At the time of his death he had lived with the Hordens for about 
six years, the last three years in a two-story sjx-room frame 



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-5- 

building which the Nordens had purchased. There is evidence 
that Braatz was the general handy man around the home. He 
attended to necessary repairs, painted the fences, performed 
chores about the house, watered and mowed the lawns, raked 
the leaves, attended to all the outside work, looked after the 
furnace, carried out the ashes and helped his daughter with such 
housework as operating the vacuum cleaner and other inside chores* 
In addition to these various services he occasionally gave his 
daughter money from his pension allowance. She testified that 
in the year preceding his death he had given her approximately 
$300, and shortly before his death he had given her some money 
to help her pay current bills. Under the authorities in this 
state the law presumes pecuniary loss from the fact of death 
to the "next of kin." "The povrty, wealth, helplessness or 
dependence of the lineal next of kin is imiiiaterial on the 
question of the amount of the recovsry imder this statute 
[Injuries Act, 111. Rev, Stat. 19^1, ch, 70, sees. 1 and 2]* 
That feature is not at all to be considered in measuring or 
estimating the loss sustained, or in deterniining the liability, 
in case of lineal kindred, when there is death caused by a wrong- 
ful act." C^tL P* & St. L, R. R, Co. v. Woolrldge ^ 174 111, 330. 
In DuJceman v. C, C.^ C, Sc St. L, R. R. Co. , 237 111. 104, suit 
was brought by the administrator to recover for the death of 
plaintiff's decedent, who was his mother. Decedent was 6^ years 
of age and left a husband 72 years old, who survived her by only 
a few hotirs, and two sons, one of whom was married and lived with 
his family, and the other unmarried and living with his father 
and mother. There was evidence that the deceased occasionally 
helped out at the home of her married son when his wife was sick» 
In affirming the lower court's refusal to instruct the jury that 
only nominal damages could be awarded, the court said: "* * * 
the rule is established in this State that where the neist of 
kin sustained a lineal relation to the deceased the law presumes 



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..6> 

some substantial damages from the relationship alone," (Citing 
C. ^ F, & St. L. R, H> Co . Y> Woolr idge f supra , and other cases,) 
In the case at bar Braatz left sixchhildren as his direct lineal 
descendants, and the suit was brought hj the adminiRtrator not 
only on behalf of Mrs, Norden, with whom Braatz lived, but on 
behalf of all of the next of kin. For these reasons we are of 
opinion that defendants* contention that plaintiff was entitled 
to recover only nominal damages is not well taken. However, 
the sum of $2,^00, in view of all the circumstances, seems to 
us excessive, A judgment of $1,500 would more nearly represent 
the pecuniary loss suffered by the next of kin, considering the 
small income and life expectancy of deceased. 

Defendants' remaining complaint relates to the refusal 
of the court to give instructions 23 and 24 pertaining to the 
measure of damages and presumptions of pecuniary loss. The sub- 
stance of these instructions had already been covered in other 
instructions and therefore the court properly refused them. 

If plaintiff is willing to consent to a remittitur of 

$1,000, within ten days, judgment will be entered here in its 

favor for $1,500, Otherwise, judgment will be reversed and 

the cause remanded for a new trial* 

AFFIR],;ED upon remittitur of $1,000 
BY PLAINTIFF ;;TTHIN TEN DAYS, IN 
WHICH CASE JUDGlilENT HERE FOR PLAIN- 
TIFF FOR $1,500 J OTHERVISS JUDGMENT 
RETERSED AND CAUSE REMANDED* 

Sullivan and Scanlan, JJ,, concur. 



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A^Tonoo^.'Ui ^n^IxLiQc; ficLs uavlXXierS 




MLTBR E, IcKAY et al., " '- ) . , 

Appellees, ) ..APPEAL FROM SUPEQIOR, COURT, 

▼. "'^"^''"'■''^'■''^1^^ COOK COtJN^ 

JAL'ES A. HAFN^-^'tc, et al., ) 

Appellant, ) 





hr PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT, 
Walter E. JiicKay and Edwin W, Lambert, who resided in 
Joliet, Illinois, were employed in the Chicago yards of the 
Elgin^ Joliet «S: Eastern Railway Company, and together with 
Ralph Crowder they were riding to their place of employment 
in an automobile owned and driven by "Robert Sullivan, They 
had left Joliet at about 10:00 o'clock on the evening of 
Feb, 17, 1941, in subzero weather, and were driving toward 
Chicago in a northeasterly direction on Southwest highway, 
known as U, 3, Route No, 7» Sullivan was at the wheel, with 
Crowder seated beside hiraj McKay and Lambert occupied the rear 
seat, ohortly after they had crossed a viaduct south of 99th 
street, the car collided with defendant's heavily loaded 
gasoline truck and trailer, parked in the outer lane for 
northeast-bound traffic on the highway, oullivan was killed 
in the accident and McKay and Lambert were severely injured* 
The latter two brought separate suits for damages, which were 
consolidated by order of court and tried together before a Jury, 
resulting in a verdict awarding each plaintiff the sum of $5,000, 
At the close of all the evidence defendant had moved for a 
directed verdict, which motion was overruled, and after the 
Jury returned its verdict in favor of plaintiffs, defendant 
made a motion for judgment notwithstanding the verdict as to 
both plaintiffs, which was likewise overruled. This appeal 
Is prosecuted from the order denying the motion for Judgment 
notwithstanding the verdict. 



>?♦ 



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«iolJbi9v »ri;f jnlbuBcttit^iw^on 



It appears from the evidence that Sam Petrone was returning 
defendant's truck and trailer containing some 7,000 gallons of 
gasoline to its garage in Chicago, and after coming down the 
incline from the viaduct and crossing 99th street his motor 
suddenly failed him and he stopped his equipment in the outer 
or right-hand lane of the four-lane highway. It was a dark 
night and there were no lights along the highway in the vicinity 
of the accident, Petrone testified that his headlights and 
marker lights, both side and rear were all lighted, and that 
after placing an electric flare some 'J^ feet to the rear of his 
trailer, he proceeded to a nearby tavern to telephone his garage 
that the motor of his truck had failed. After completing the 
call he had a conversation in the tavern with one Louis Page, 
who later testified as one of plaintiffs' witnesses, and was 
about to leave the tavern with Page when a woman entered and 
told him of the accident. He states that before the accident 
he looked out from the tavern and noticed the lights on his 
equipment still burning and clearly visible. Two other witnesses 
testifying on behalf of defendant offered corroborating evidence 
as to the lighting on and about the truck and trailer, and some 
seven of plaintiffs' witnesses testified on the subject of visi- 
bility and lighting, which constitutes the principal controversy 
in the case. Defendant concedes that his case "stands or falls 
on the proposition of whether or not the *** equipment was 
properly lighted while on the highway," He does not contend op 
argue that the verdict is contrary to the manifest weight of the 
evidence, but advances the contention that since all the wit- 
nesses on both sides testified in substance that the equipment 
was lighted while parked on the highway, the accident must have 
resulted from the negligence of the driver of the car in whloh 

plaintiffs were riding, and therefore the coart should have 



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-3- 

dlrected a verdict for defendant at the close of plaintiffs* 
evidence, or allowed defendant's motion for judgment notwith- 
standing the verdict. 

Beside Petrone, defendant produced as witnesses Royal 
0, Stephenson and his wife Alice ^ who had passed the truck prior 
to the accident to purchase fuel oil at a gas station, and again 
on their way back. Both corroborated defendant's testimony that 
the tail and marker lights could be plainly seen* 

The evidence adduced by plaintiffs' witnesses is in many 
respects in conflict with defendant's evidence and may be briefly 
sumnarized as follows. Betty (Jentleman, who lived nearby, testi- 
fied that on looking out of the window she saw the headlights on 
the truck, and stated that "They were not very bright when he 
first parked there, but they got dimiLer later on. They continued 
to get disEier as time went by. Cars were coming from the west 
going toward Chicago, that is^ northeast. The brakes would squeal 
as they would have to cwae over to the other lane of traffic to 
get by the truck, •'HHt There was a small white light that I saw 
on the pavement which was near the middle of the highway, near 
the middle of the lane toward the side the truck was on, *** 
about 30 or 35 feet from the rear of the truck. This light was 
similar to a small match flame, **♦ I again observed the head- 
lights on the truck and you could hardly see them, <*^** I saw 
no other flare than the one mentioned above until after the 
police arrived and set out flares," 

Her husband, James Gentleman, testified that there was 
a small light down the highway, about 1? feet behind the car 
that was wrecked, or approximately 30 or 35 feet to the rear 
of the trailer, "It was right in the center of the highway 
and was an electric lamp or torch. It was a very faint light. 
It was a white light from the side I saw but from the other 



«««='9S ^Xiiisi<i «tf feluoo sctxisif i^^iiaa kns IJU* «ifJ 

xro B^il^lli:)jsi8d ad;r ws* ads wofeoiw sd;^ to ^»o afi-WooI no tatli b^lt 

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'5i "^o ftfifll 'tiwU^o i'£f;t oj itvo «»oo OS mvMd bXnovt xttri^ es 

w*5a i drjsdJ- ddfijti 9^16* IXmiB a ztm 6ri®xiT **•* *^oiri;t ftcf;J "^sf ;f©s 

'liififi tX^iialii ari^ lo alfefeM atij latm eew iiotriw d^iaejacvaq «»fU no 

*^ %iio eafT j^i>«^-t ^i ^6±s o&? fc^w©;?- aosl osH to »lbbitt mii 

ai-,w ^ilaiX ziM *'A9tnS »tt^ "io ^»ioa 9di ssatJ (h»l ;«£ 10 0£ ^txnocfe 

-hjierf afii fo©vi»GCfo nX&^& I «*» .aoEXl ittsts^a llm^ » o^ nfilijgl« 

WB8 I *-** »£^od:^ 3»ii ^fcijsri £>I«oo jjoy i>ixB 3{oj/i* »d;^ no e;!/!^!! 

ortt. ^d'^^ Xic^fti; svode b'Qcioliasm »oo isifcf tiad^ arj^It fd&o ojt 

»,8«ifI^ *iio cfw« bSLB fcsvliifi »aiioq 

^Bo ©rfj^ fjctldsd iaei ^l tstfi^^ ^xawilsiri ©rf^t owofc iA^ll llmt • 
TSi«n ejio^ o:{ i^m't H ito Of ^:Xf^;^6ciK0iqqi; 10 ,l)«aIo«>^ e«w *Bf» 

a»d;ro »fi^ ifw'xl cl«c( wjiB I efcX£ ^di moil j.-l>,il .:.-fMK »» --^^ •* r 



side I couldn't say whether it was red or what color it was," 

Louis Page, who had met Petrone in the tavern before the 
accident, testified that he saw no lights on the equipment and 
that the flare which was placed about 30 feet behind the trailer 
in the center of the liighway was dim. 

Archie S, Moran, squad leader fop the Illinois State 
Police, testified that he received a call in his sqiiad car by 
radio and proceeded to the site of the accident with Sergeant 
Kennedy, arriving there shortly before 11:00 o'clock. He stated 
that the headlights on the truck were not lighted ♦ "After we 
swung by the truck, we pulled over in the clear on the shoulder 
***, Then we went out on the pavement which is a 40«foot pave- 
ment *-!»-^^, On the rear of the truck -^^-^^ there were three bar 
lights on the top of the tank. They were not very bright as 
they were dirty. There was an electric bomb approximately 35 
feet to the rear of the truck in the center of the pavement. It 
was almost burned out at that time. There are supposed to be 
two red lenses in these bombs but there was only one in this, 
*^^ The light was practically burned out, just about as bright 
as a cigar or cigarette. I took the bomb and still have it. I 
looked for other bombs or flares, etc., on the pavement and 
there was no other electric lamp on the pavement at any point 
near that truck. *** At that time the requirement was that a 
bomb be set out 100 feet to the rear, one alongside the unit 
and one 100 feet to the front, I investigated 100 feet to 
the rear and found no bombs, nor did I find one in the front. 
The only one was on the roadway side, the west side. In the 
cab we found another bomb but the battery was dead. These 
were the only two bombs. I asked the driver of the truck 
as to the third bomb and he said he hadn»t any. I measured 

the truck as to its position on the highway with reference to 



^ 



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Ltsti ®fl;# fen-tdsrf credit 0^ J?^<3<^J^ fosofliq ajeis doJtriw ©isll ©Kef ;J&rict 

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©cf oi 6s»aoqqiia s'ls ai^xl'I »aa!i3' if^iH Ss, iira fisn-iwcf ;tao«Xs «sw 

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d^dgiid fcB imxSa cfa^t ^:rx/o bsnrsx'cr ^XI.oDWsB'iq ejew td%lL adT **♦ 

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fitt© d'n®iB©Viaq sd;t no ^.oto j3^<iBl*i -tio ftc&socf idriJ'o lol 59>CooI 

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:}l£iis s£td' 9JE»i8;gnolB ©no ^i«»*r tdd- oi ^©el 001 ifjao c;»8 stf dood 

ocf cf-?59l 001 bsjssl^aevjal- I ,iaoi1 BtU od" cf^-sl 001 «no fcflB 

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Mt al .©file ^aow sil^f ^9bi& xembBCi ?dcf no ?.3W ©no xXno arfT 

QEsifi' ,f)s®£) 2BW Y^©:^:^Bcf a«I;t cfucf aarocf Teii^ona finuol 3w deo 

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CK)- rOnCIOlPI CiitW \..-.;. ;jiii ...,., at U.JJ 



.1 :.i:u;. i.T.r o;' 



the right-hand edge of the cement pavement and the rear wheel, 
which was the dual wheels on the semi-trailer, ?/as six foot six 
inches and the front wheel, the front axle, which is a single 
tire unit, was seven feet from the curbing of the pavement ♦ 
Opposite the truck, the shoulder on the southeast side of that 
highway was about 13 or 14 feet. It was considerably below zero 
that night. That particular shoulder is graded and the State 
has that just for aity emergency. It's that wide so you can 
pull off there in an emergency. In that weather, it was hard* 
The ground was in good shape. At its widest point, a truck is 
allowed only eight foot width," 

Wilbur Kennedy, who accompanied Moran, stated that the 
electric bomb was about 30 or 35 feet to the rear of the truck 
by actual measurement, and otherwise corroborated Moran* s testi- 
mony relative to the position of the truck on the highway and 
the absence of flares in front and on the side of the truck. 
With respect to the one signal bomb placed about 35 feet to the 
rear of the truck, Kennedy testified that the red reflector 
glass was broken, showing a white light instead of red, and that 
the group lights on the rear of the truck were lighted but the 
glass was dirty and. they were not very bright. Kennedy related 
a conversation with Petrone in which he had asked the latter why 
he was out on the highway without proper flares, to which Petrone 
replied that "he had told his garage foreman about that a couple 
of days before, and he told him to go ahead and drive it or quit," 
Kennedy also stated that as they approached the scene of the 
accident the headlights on the truck appeared to be out and the 
squad car nearly passed by the equipment » 

On direct examination Petrone had taken the position 
that he did not consider it safe to pull the large equipment 

onto the shoulder of the road for fear of overturning and setting 



.-^jiiu 10 «fciB *SB»iic^xfoa ^Oi no ^©iilL'oric ^xic^ <3foiJi;f 9di »;MaoqqO 
•I05-. wOlDQ xi«'J<si©Jblenoo esw j?I ♦iesl -M 'lo £X iuodx, asw x^wilgld 

/IS© m)v ©IS eMw ;Jsiiif 8»;tl .X9ne:&'i&&^ \a.8. lol if^ui iudi esri 
«b^ari sisw di ^i^ii^;i9"^ iedi cl ♦x^onsaisa® fiis Hi e-md^ Tib iluq, 
si iToun^ B ^^iiloq; cJasbxw i:' . sciMfi boos ajt asw bflU«ois »iiT 

:&tn}ii i^dt "iQ -I*©'! ©rid" ©«J ^f^sl: vi£ %o 0£ d^jaods e«5W «faiDCf, ©lictosXa 

-Wse;! E'nsTtoM fc®^attocf©ii«o oairwiejty'o fcna ^tflSffis^JJEBein XjsxKfa-fi x^f 

fcxi/i ■^esnfsJtd osH no ilsiiti;;^ srf* 1» «oj;;Haoq ©rfd^ oj" evid^^Xsi xa^m 

*3£ouistf «>di lo ©hi a 9xU ao hn& ismjl at boibXI lo sunsedB ari^ 

9fi^ SBd bi^id^ll sisw :i^ox;^J' Sftt lo t«»^ «di no s;*-^^'*:^ QSJoi^ add 

:-?noi^e<i dohL^ q& ^z&i&Lt ^»<|onq ;^iK)ii^ivf xjsasii^ld mii no ;tjfo acw od 

slqiroo £ *;afLJ cf«o<Ja aaaercol es^isa aJUi f>Xo;f bajsi ©ri" d-jaxW fieiXqsi 

",:?lj;;p 10 dl ©vli£> bns bt^tia og oi nriri bloi 9d bfiQ ^^loV^d z\&b lo 

®il;t lo aaeoa siiJ b&dvBomq^ \adS && i&di b&iaiu osXb xJ&eaaaX 

edi bn& Sua «cf ©J- J^oudaqqa iteii'i;? (!s£W no &Sd^ilh&ed &di iaoblo^A 

noMtaoq Bdi ni&Ti&^ b$d »aoi;to«l jaoXJ-fialsuaxs i»saJt& xiO 
;}iir^ii(p© sgisX ©ri;* XXijq o^ «lAa ^1 it»f»J:enoj> :^on f)iX> erf ;tarf^ 

BR-Wd""^' f'n ^ galintf^ T«vo lo t'o'- ••',•' >,. .y .^ loolitoda ail^ '>;rr.-^ 



-6- 

fire to the gasoline contents of the trailer, but later he 
testified that "I am trying to refresh my memory, but don't 
believe I made an effort to get it towards the outside lane 
of this northwest direction of the Southwest Highway," 

In addition to the foregoing evidence plaintiffs them- 
selves testified, without contradiction, that Sullivan was a 
very careful driver, that he was proceeding along the highway 
at a moderate rate of speed, that he had left the front vdndow 
of the car open so as to avoid frosting and thus give him good 
visibility through the windshield, and that there had been, no 
warning of the accident until Sullivan suddenly applied the 
brakes, about 30 feet back of the trailer. The crash ensued 
immediately thereafter. 

Plaintiffs rely in part on a violation of the statutes 
requiring safeguards on parked vehicles along public highways 
after sunset. Section 218 of the Motor Vehicles act (111, Rev, 
Stat* 1941, ch. 95-1/2) contains the following provision: "When- 
ever any motor vehicle *^^ and its lighting equipment are disabled 
during the period when lighted lamps must be displayed on. 
vehicles and such motor vehicle cannot immediately be removed 
frcaa the main traveled portion of a highway outside of a business 
or residence district, the driver or other person in charge of 
such vehicle shall cause such flares, lanterns, or other signals 
to be lighted and placed upon the highway, one at a distance of 
approximately 100 feet in advance of such vehicle, one at a 
distance of approximately 100 feet to the rear of the vehicle, 
and the third upon the roadway side of the vehicle, except that 
if the vehicle is transporting flammables three red reflectors 
may be so placed in lieu of such other signals and no open 
burning flare shall be placed adjacent to any such last mentioned 
vehicle," The first paragraph of the same section provides that 
"Ho person shall operate any motor vehicle *■^H^ upon a highway 
outside of a business or residence district at any time from 



iwsal «»f>iaJ'i/r :'^BWo;f ^1 cJf^^': o;t ctiol^io as ebem I evdilsd 

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fcsuaiis fiasio ©ffT .isXIbiJ- sriJ- lo ilosd ^©el 0£ ^i/oda |B9>LBncf 

, isd-lse'iari;! X-ts^slfcsaigLl: 
8ocfi;;tfi;fe 9xi:t lo fioi:t«Ioiv , ^ :^iBq nJt xlst allWflJtel^ 

. > :.s asIoMsV «»^oM tH lo 8iS aoJtiosS .ctesxuie i9;tl« 

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iio bffl'^fiXqeib ed ^aBm eqiHJsI Jtjed'rlsiX uariw bolisq tai) ^aliub 

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i&£lt jqso-.c ^ — :,ldoy odi lo eJblf. x^^^-boi wlct noqir biidt &d& fcna 

anoctosXl' '^ "''-■"'■ 9&idi aeXcfaiamisX'l sal^tnoqaiiB-t^t el ^Ivldsy »d^ 11 

fi»qv) •>) a:. F« 'yt*dio douz lo jjelX ni bfeofiXq os ed x*> 

Jbs)iioi.d^a©ia i\...^ ..^.,^ ,.. n»os(,^« fteofiXq »cf XXBrfa eoBXl sflia^unf 

;t«fiJ- e&blvciq tiQlio^c. u . . 9>if;f lo riqi5i8.«iBq ^snll 9d:T ".eXoifiov 

XftvifjaM B flOcri; ♦»« »X9ii!{«^> lo^oiB tna •^teiecto XXaita flooasq «II" 

aroil ©ffljt:J vhb jj-: - • • '- ^ ~ ■• '• — — — ' a lo »blmSao 



sunset to sunrise unless there shall be carried in such vehicle 
a sufficient number of flares, not less than three or electric 
lanterns or other sigrials capable of continuously producing 
three warning lights each visible from a distance of at least 
500 feet for a period of at least 12 hours, except that a motor 
vehicle transporting flammable liquid may carry red reflectors 
having a minimum diameter of six inches in place of the other 
signals above mentioned," 

The evidence discloses that Petrone carried only two 
electric bombs instead of three. The battery of one bomb.^ 
found in the truck, was burned out, and the one used by Petrone 
was so weak as to produce a light "similar to a small match 
flame" or "just about as bright as a cigar or cigarette," and 
the red reflector glass was broken, producing an almost invisible 
white light* There is considerable conflict in the evidence about 
the lighting system on the truck, which was described by some of 
the witnesses as "dim," "faint" and "dirty*" There Is further 
evidence indicating that defendant's truck and trailer were 
parked six or seven feet to the left of the right edge of the 
outside lane, constituting an obstruction to both lanes used for 
northeast traffic and creating an extremely dangerous hazard on 
a dark highway which motorists could not well escape. Plaintiffs 
were entitled to have all these facts and circumstances submitted 
to the jury on the question of negligence, and we are satisifed 
from a careful examination of the record that the evidence adduced 
made a prima facie case. 

The law is well settled in this state that it is Improper 
to direct a verdict for the defendant where any evidence, taken 
as true, together with the most favorable inferences that can be 
drawn therefrom, tends to support the allegations of the complaint 
and to make out a prima facie case for the plaintiff, Moudy v^ 
He w York C- & St> L> R. Go,^ 317 111. App. 154; Capalle v. Ghicaf^o 



c 



eXojJlfiv tioti-^ iii, . -jL v.o .:i;3ii£ 9i':;/i;t aselni' ©aj:ixuja q^ ;t8ajaoe 

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lo ©raoB ^tf Jbscflicasi: e-isw livlivj: ^iloirid' ©riJ no jiio.tsxs snlctrigiX Btii 

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101 bi,dii .aaii/iX xi^tocf oi 1101^0x11^8(10 na anl^j^jljenoo ^»nsi ofeled-uo 

xxo fiiasfid ex/oissixab xXsmoicfxe rt3 ^I^bbio baa olll&ii ia&^siiioa. 

s1tiSatBl*l .©qsoae XXevf ion bliKJO a;t3lio.:foia xlolttw XBWilalii jiisfc s 

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.seso oioisl gfalgg a ebatu 

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-a* 

& N> ir» Hy^ Co >f 280 Ili« App, 471, A-nd the same rule applies 
tc a motion fer s verdict non obstante y eredicto « A raction to 
instruct the jury for defendant is in the nature of a demurrer 
to the evidence, and the testimony so demurred to, togi«ther 
^ith all reasonable inferences a.?rls5.ng therefrom, lEUst be taken 
most strongly in favor of the plaintiff. McCune y» Bey noldSf 
288 111, 183, In considering such a motion the trial court is 
not at liberty to consider the preponderance of the evidence or 
the cr-sdibility of the witnesses. The only question which it 
Las to determine is whether there is in the record any evidence 
which, if true, fairly tends to prove the allegations of the 
declaration. The weight to be given the testimony is a question 
for the jury. The same considerations are involved in determining 
a motion for judgment notwithstanding the verdict* Under the 
circumstances it would have been improper for the court to usurp 
the function of the jury and weigh the evidence in the case at 
bar. All the facts available were properly presented to the jury. 

Defendant coaiplains of thi-ee instructions given on behalf 
of plaintiffs relating to the provisions of the statute with 
respect to safeguarding disabled equipment parked on the highway 
after sundown by means of lighted lamps required to be placed in 
the front, at the rear and to the side of the vehicle. It is 
urged t at the provisions of the statute are applicable only when 
the lighting equipment becomes disabled, and counsel contend that 
according to thft undisputed testimony of all the witnesses the 
"lighting equipment was not disabled but was in working order, 
plainly visible and seen by every witness ^*ho took the witness 
stand in the trial court," While it is true that the rear and 
marker lights were lighted, there is considerable evidence that 
they were dim, faint and so liapaired by the cold weather as to 

be scarcely visible. Petrone^s testimony indicates that the 






ti 



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ni: hooBlq 0cf o;t bsxtup&'i sqmfil b^isl^JLl 1o 8ii.«©ffi ^cf xrrobmirc is^^b 

dsflw -^Lio eI(fBOJ:Iq<ffl ©ib ©^r^B^B edi to enoieivoiq exid- d-e.-'lt bsgiu 
^sftf fen©;JnoD Xsanx/oo fens ,£)oXtffiai;I> essoostf c^nseqijjpe sxliJii^lI ©il:^ 
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^'iQbno iisijlttow al esw cfxrcf bsXo:ijaX£) ion bsv d-xisiaqxtpo 3nl;tj:ial:X'' 
eesaitJtw ?Mic^ sfooJ oriw scend-lv x'^^-vb xcf xi9«£ bnis sXcfialv -^XnlaXq 
baa i&ei odd- d-aciJ- ejtri^ si di s-XlrfW «',d':«oo lalti Bdi ai. bas&z 
^Aflit sonsMvQ eXcfaio bxanoo si a-isilj ^£)»;txiaiX 9'xsw adrii^iX io^i^ibib 
o;? as lorfjfsew bXoo sxid- x<:l ftsatfiqAti oa has d-njtal ^raxf) 9i»w xsdi 



-9- 

impalrment of the lighting system was due to a weak tottery. In 

attempting to explain wi^ he Iiad not moved his equipment farther 
to the right of the pavement or on the shoulder irasiediately adjacent 
thereto, he testified that after his motor failed the equipaeat 
stopped within a few feet. He was then going 12 or 15 tiiles an hour 
and threw out his clutch in an effort to get the car to coast, but 
"It stopped regardless of whether tite clutch was in or out," He 
had a self starter on the truck which derived its power from the 
totteries. The self starter would not work, and it may be inferred 
fr(»a his testimony that his batteries were either weak or frozen. 
If they were weak when the truck stopped and became weaker as it 
stood there for upwards of 20 minutes in subzero weather, it is 
conceivable that the lighting became progressively dimmer, as 
several of the witnesses testified, so that eventually it failed 
to serve its purpose of warning oncoming traffic. In these cir- 
cumstances it became all the more important to have bright and 
efficient warning lights placed along the highway, as provided by 
statute, and the court properly apprised the jury of the statutory 
requirements with respect to disabled vehicles parked on a dark 
highway. The follovdng comrjent of the court in the Capelle case, 
supra f is applicable to the situation in this proceeding j "In 
furtherance of the general principle that it is preferable that 
cases involving questions of fact should be disposed of on their 
merits by a jury, rather than upon formal motions, a trial court 
after denying a motion for an instructed verdict for defendant, 
at the close of plaintiff •Ib evidence and again at the close of 
all the evidence, should not render nugatory the verdict of a jury 
returned on disputed questions of fact, by rendering a judgment 
non obstante veredicto in favor of such defendant," 

Accordingly we think the court properly overruled defendant's 
motion for Judgment notwithstanding the verdict, and the order is 

therefore affirmed, 

ORD'm. AFFIRMED. 

anlan and Sullivan, JJ«, concur* 



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.i lilt* »rcot«i«^^ 





O /w vl X«i\.d 

41368 

SONIA SWIRSKT, Administratrix of the *^-"if" 
Estate of LffiYSR S, SWIRSKY, Deceased, " ) 

A|^p6llee, ) ,^'' 

^..^--"" ) ' 

MILK WAGON DRIVERS*' -WIDJ^, LOCAL 753, ) 

INTERNATIONAL BROTHERHOOD "OT^-IgAM- ) SUPERIOR COUR^.^ 

ST5R3. CHAUFFEURS, STABLEJi/IEN ATO"'^-.^ ) / ' 

HELPERS OF AMERICA; ROBERT G, ^ITCHIBf ■'"-..^. J COOK COUNTy^' 

JAMES G, KSNI-SDY; STEVE C« SUMNER; F'"^-:,^ />"' 

FRED C» DAHMS; P. RAY BRYANT; ALVIH P, ) 

RICHARDS; JOSEPH L. PATTx^SON; HENRY ) 

WEBER; THOMAS HAGG2RTY; PETER HQBAH ) 

and GUS MOLINE, ) 

Appellants, ) 

MR, JUSTICE SCANLAN DELIVERED THE OPINION OF THE COURT* 

An amended complaint in the nature of a bill in chancery 
was filed by plaintiff. The trial court entered the following 
judgment orders 

"This cause coming on to be heard upon the motion of 
the plaintiff, Sonia Swirsky, as Administratrix of the Estate 
of Meyer S, Sirlrsky, deceased, by Myron E. Wisch, her attorney, 
for summary Judgment in favor of the plaintiff and against the 
defendants. Milk Wagon Drivers* Union, Local 753, International 
Brotherhood of Teamsters, Chaiiffeurs, Stablemen and Helpers of 
America, Robert G. Fitchie, Jsimes G« Kennedy; Steve C, Sumner j 
Fred C, Dahms; F, Ray Bryant; Alvin P, Richards; and Joseph L, 
Patterson; and each of them, pursuant to the Civil Practice Act; 
and the court having considered the affidavit of the plaintiff 
for sumiiiary judgment, together with the supporting affidavits 
filed herein; and the court having also considered the affi- 
davit of merits of the defendants filed in this cause; and the 
court having heard the arguments of counsel, and having con- 
sidered said motion of the plaintiff for summary judgment, 
and being fully advised in the premises, the court Doth Find: 

"That plaintiff's affidavit for sumiiiary judgment and 
the supporting and additional affidavits filed herein, are in 



o K |\ T A O 

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-^ 

due form and in accordance with the Civil Practice Act. 

"The court doth further find that the defendants, and 
each of them, have no defense to the action, 

"It is, therefore. Ordered, Adjudged and Decreed that 
the motion of the plaintiff for summary Judgment be and the same 
is hereby granted; and 

"It is further Ordered, Adjudged and Decreed that the 
plaintiff, Sonia Swirsky, as Administratrix of the Estate of 
Meyer S, Swirsky, deceased, have and recover from the defendants. 
Milk Wagon Drivers' Union, Local 753» International Brotherhood 
of Teamsters, Chauffeurs, Stablemen and Helpers of America; 
Robert G, Fitchiej James G. Kennedy; Steve C. Sumner; Pred C« 
Datams) P, Ray Bryant; Alvin F, Richards; and Joseph L, Patterson; 
and each of them the sum of Two Thousand Seven Hundred Two and 
70/100 Dollars, as in plaintiff's affidavit alleged, with interest 
thereon at the rate of five per cent per annum from the 10th day 
of April, A, D, 1940, until paid, together with costs, and that 
the plaintiff have execution therefor," 

Defendants appeal from that order. The amount of the Judg- 
ment, $2,702,70, was made up as follows: $1,296 for sick benefits, 
$1,000 for death benefits, and $406,70 for interest. Heither the 
amount of the sick benefits nor the amount of the interest is now 
questioned in this court. Defendants contend that $100^ instead 
of $1,000, should be awarded for death benefits, 

Ihen the briefs in the instant case were filed in this 
court Plchter v. Mil k Wagon D rivers' UnioQ, 382 111, 9I, had not 
been decided by the Supreme court, and defendants, in their brief, 
were urging points made by them in the Fichter case. Upon the 
oral argument, because of the decision in the Fichter case, all 
of the points urged were abandoned save one, viz: "Even under 
the by-laws in effect when Meyer Swirsky became a member of the 



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) 

-3- 

Union in 1930 the maximum death benefit to which he was entitled 
was the sum of One Hundred Dollars," and that the trial court 
erred in allowing plaintiff $1,000 for death benefits. The 
brief filed by defendants is a lengthy one, but the instant 
point was disposed of in a few lines. 

The following facts are undisputed: That Meyer S, 
Swlrsky was a member in good standing of the Laundry Drivers* 
Union from. January 6, 1925, to the date of his transfer to the 
Milk Wagon Drivers' Union on April 17, 1930j that he was employed 
by the Western Dairy Company, Inc., as a milk wagon driver j that 
Swirsky was permanently disabled from August 25, 193^* until 
the day of his demise, January 17, 19 37 J that he was a member 
in good standing of the defendant union from April 17, 1930, to 
January 17, 1937* Under the decision in the Fichter case the 
1922 by-laws of the union governed the plaintiff's rights. The 
provision in said by-laws that relates to death benefits reads 
as follows: 

"The first three months after becoming a member, either 
by paying initiation, transfer card or returning on withdrawal 
card no benefit will be paid; thereafter the benefits will be, 
from three months to the end of six months, $100, 00 j after six 
months to the end of twelve months, $300,00; thereafter 
$1000,00*" 

The affidavit of Sonla Swirsky, plaintiff, in support 
of the motion for sumniary judgment alleges that "there is due 
to the plaintiff the sum of One Thousand Dollars as death 
benefits," The counter-affidavit filed by defendants in opposi- 
tion to plaintiff's motion for a summary judgment contains no 
denial of the said allegation in plaintiff's affidavit. Indeed, 
the sole point now raised by defendants was not referred to in 
their counter-affidavit, and it was clearly an afterthought. 
The argument made by defendants in their brief in support of 



( 

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the instant point is short, and we will quote it in full: 
"Assume for the sake of argument, the I930 by-laws 
govern, [It is conceded that the 1922 by-laws were in force 
in 1930 and that there were no by-laws passed in 1930,3 The 
plaintiff recognized in her original complaint that at the time 
of his death Swirsky had not been a member for more than ong. 
year . Plaintiff then asked for the sum of $300 as a death bene- 
fit. Under the I930 by-laws $300 was the death benefit payable 
for the death of one who had been a member for a period of 6 
to 12 months, 

"This original interpretation by plaintiff as to the time 
when a person is a member of the union within the meaning of the 
death benefit by-laws is more than defendants' interpretation. 
It should at least be followed in this Court," 

This flimsy argument is based solely upon the fact that 
the original complaint alleges that there was due plaintiff, in 
addition to the sick benefits, "a further sum aggregating Three 
Hundred Dollars for death benefits, due under the said By-iLaws 
in force and effect at the time the said deceased became a member 
of said association," Defendants do not call attention to the 
fact that plaintiff, in her amended complaint, alleges the 
following: "That, in addition thereto [the sick benefits], 
there is due to the plaintiff the sum of One Thousand Dollars 
as death benefits, pursuant to the by-laws, rules and regulations 
of said voluntary association." Defendants, in their argument, 
ignore the fact that in plaintiff's affidavit for a summary ;)udg- 
ment the provision in question in the 1922 by-laws is set up in 
full and that plaintiff alleges that there is due her by reason 
of said provision the sum of $1,000 as death benefits, and 
defendants also ignore the fact that in their counter-affidavit 
this allegation is not denied nor questioned. Indeed, defendants 
in their argument do not contend that plaintiff was not, in fact. 



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\ 

entitled to the $1,000 as death benefits, but the argument 
amounts to this, that because in the orlglrial coaplaint plain- 
tiff misinterpreted her rights under the provision in question 
she should be held to that misinterpretation regardless of the 
Justice of her claim. It is no compliment to this court that 
defendants* counsel should have seen fit to make such an argu- 
ment. As shown in their counter-affidavit to plaintiff's 
affidavit in support of her motion for sutamary judgment and 
by their brief filed in this court, the attitude of defendants 
in the trial court was that plaintiff was not entitled to the 
$1,000 death benefits under the 1922 by-laws because Swirsky 
was bound by the 193^ by-laws and under said by-laws was not 
entitled to aiyr death benefit. The Supreme court, in the 
Flchter case, decided adversely to the defendants all of the 
real points that they raised in their brief in this court in 
the Instant proceeding, and when the Flchter case was decided 
the instant appeal should have been dismissed, 

Ths judgment order of the Superior court of Cook county 
should be and it is affirmed , 

JUDGMEHT ORDER AFFIRMED^ 

Friend, F» J*, and Sullivan, J,, concur,. 



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42429 



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FRANCES BAUMGARDNER, -^ ^ J»^ /^ 

Individually^ ^-"-^ ) ^"T^-*-^ 

^^ ~ Appel^*e^.__ ) APPEAL FROM Sllb^.lOR COUHT 

▼. ^^-"^ ) '""■"'^H^ -COOK COSNTY, 

PAUL Bp»^^^ ) " ""^'''"'^-^^ / 

^^ Appellant. ) ^""^ /i 

MR. JUSTICE SCANLAN DELIVERED THE OPINION OF THE COJRT, ' 

Frances Baxnagardner, individually, sued defendant, Paul 
Boyer, to recover damages for personal injuries to herself, and 
also sued him as administratrix of the estate of Orville 
Baumgardner, deceased, to recover damages for the death of her 
husband. The two cases were tried together and the Jury returned 
a verdict for plaintiff, individually, in the sum of $5,000 and 
also returned a verdict of not guilty in the death case. Defend- 
ant did not ask for a new trial in the case where the verdict 
was against him but entered a motion for judgment nofl obstante 
veredicto^ which motion was denied, and judgment was entered 
upon the verdict. He appeals from the action of the trial 
court in denying his motion for judgment non obstante veredicto . 
The trial court, upon motion of plaintiff, as administratrix, 
granted her a new trial In the death case. Defendant then filed 
in this court a petition for leave to appeal from that order. 
On January 12, 1943, we denied defendant's petition. 

Count I of the complaint relates to the claim of plain- 
tiff, individually, and reads as follows: 

"Count I 

"Now comes the plaintiff FRANCES BAUI:GARDNER, individually, 
* * * and complains of the defendant PAUL BOYER, and for her cause 
of action says: 

"1, That on or about to-wit the l6th day of June, 1940, 
the plaintiff Frances Baumgardner, individually, was riding in 

an automobile which was being operated in to-wit a westerly 






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^d^ fflortl «Ia«:i , "If; lev ^lii noqu 

.o;?^j:b9iav .©^^M^q go^ ^isoffi^fex/t 'lol floi:Jom Bill snlxnsf) at i^asoo 

f.xti:i&iiiilsii^ii& b& ^liJkiatalq lo aolicm noqu <;5"ax;oo leln* wlT 

^isfcio ;t«rid' Btoti iQsqqB o:t ©▼ael -fiJT hold^ld-eq b iitsoc b1A& at 
♦nol;tic!-»q e ' d-flafcnslsfc b»taob «w ,£■^?X ,SI TfiauiuT. nO 
-^tslq lo ialalo oxl:^ oi a^ii^loi ialBlqmoo etii "Yo I iauo^ 

lawoilol aj8 ebaan fm& ^xllsabl-vtbtit ^J.tti 

^Xllsiubtvthat ^HSHaHAOJflTAS aSDi'tAiTl llJt^j-fllBlq erl^ aaaoo wo51* 

sEi/so lori lo't baa ^flSYOa iXTTAS[ ^'nsfoac'tffc 9£C;f ^o nat&lqtsoo baa * * * 

^. .1 ^ ^•,:. . .. :) xsib d^6l ^di ilxi-oi^ .IuocTb to no ^ariT .X" 



^ 



direction along and upon to-wlt 55th Street, a public hlghwaj 
located in the County of Cook and State of Illinois, and was 
at all times in the exercise of all due care and caution for 
her own safety, 

"2, That the defendant maintained and operated a vehicle 
in a southerly direction along and upon to-wit Willow Springs 
Road, at or near where the same intersects with 55th Street in 
the County and State aforesaid « 

"3, That the defendant misconducted himself in one or 
more of the following ways: 

"a. Operated his vehicle in a negligent manner; 

"b. Negligently operated his vehicle at an excesslTe 
rate of speed in violation of the statute ©f the State of 
Illinois in such case made and provided; 

"c. Negligently disregarded traffic signals; 

"d. Negligently failed to give any warning signal to 
the plaintiff by blowing his horn; 

"e. Failed to stop his vehicle when danger to plaintiff 
was imminent, 

"f , Drove said vehicle in a willful and wanton manner 
with a conscious indifference to the consequences, 

"4, That by virtue of one or more of the above mentioned 
ways, the defendant's vehicle was caused to and did collide with 
the automobile in which the plaintiff was riding, 

•'5. ^That by means of and in consequence of the direct 
negligence of the defendant, the plaintiff FRANCES BAIBIGARDNER, 
individually, became greatly injured both internally and 
externally and divers parts of her body became therefrom slck^ 
sore, lame and disabled ^* -k^ *, 

"TO THE DAllAGE OF THE PLAINTIFF FRANCES BAUMGARDNER 

individually in the sum of TWENTY THOUSAND DOLLARS." 



l' 



2^-*- . -ionlil" " :;cfe isiijs 2i oD to ig^mroO ari;^ ni ts^sool 

'iol noijij^o fefifi 91J0 "^ "o ssiisr^sx© wl* nl esirLtit IXjb tB 

.Y^elsa nwo i«ii 

asnligS. woJIIlF « bn^i SXXoXb Gol;to0iJ:& xiT.:r.:j.v':.'s b is.: 

,bl6aeiolB ©J-b;?^?. fats x^nxioO etd& 

:8"^sw sjnlwollo'x oiU lo sioar 
jisflxiBfH ia^^lliSiBa B xil sXoiuIov a.trf f)s;tB*r9qO ,fi" 
9fiai»t®dx£i HB ^1*3 ©XcJfcri«v Bid i)«;tsa:9qo ^jIctfloaXXgoK .d" 

1© 0iisj;ta oxi^ lo ^c^4J;J•BJB 9dS lo nolchslolv ni bsaqa lo e&&i 
ibofclvoiq £tfi« ©ftfic ©aso rioife n± eloytillXI 

oct Xsngis sis.taiBw x/i^ s-vl^ o:t b»Xisl xJ^^'neslXge-. 

(Giod a Jul srilT-roXtf x^ UtiJcijeXq »if;^ 
lill^axaXq oi ^©s^^jb asd^ sioiijclsv sM qo*3 oj JisIJ:®^ ,©» 

^ajiiisffl sioJatm fiaa XiflXXiw s ni; sloiulev biBB svo^rQ ,1" 

,e»a£t6irp92noc ^di o^ saa©is>lllbiii: ei/olDEiioo fi diJtn 
bsaolSasm ©vocfa e/1^ lo ©loia io ©oo lo di/^iIv ^cf ^jarlT .■^" 
ili'i'w ©biXXoo bib Iixib Oo J^sew^o ssw ©Xoiflsv e*in&bn9lfib axLf ^ex^v 

lADJOTAS aa; '^JtlnxxsXq eri* ^ctnaJbiaslsii ariJ lo aonsglXjen 

Ijfl© Yilj6ja^©:fnl il^^oa &«q[«r,nl xJ^^a®i3 «aiso»dr ^X-d^^^fcl^-tX^nl 

^3ioi:a laoileisricf emsoecf xJE>orf riori lo a:f*iBq eifivtb ba& xJ^X-mi^®^* 

SEHaHAOLTUAH SaOiUH? 'S'^imtAJ^ SgT "TO aOAMG SHI 01" 

".agiUJOa, CTSAauOHT YTK^'T lo mue 9d& al \naubtvlbaX 



1 



-3- 

The following amendment to Count I was allowed: 

" Paragraph 1 

"g. That the said defendant then and there wilfully and 
wantonly drove his said automobile into the intersection disre- 
garding the stop sign protecting said intersection, 

"h. That the said defendant then and there wilfully and 
wantonly, and with a conscious indifference to the consequences, 
drove his said automobile at a Mgh and dangerous rate of speed 
into the said intersection without stopping and without regard to 
the stop signs then and there protecting the said intersection," 

Defendant, in his answer, denies that he was guilty of 
wilful and wanton misconduct as charged, denies that he was guilty 
of negligence, and alleges that he was in the exercise of due care 
at the time and place in question, that plaintiff was not in the 
exercise of due care and caution for her own safety, and that she 
"was guilty of willful and wanton misconduct which proximately 
caused or contributed to bringing about the occurrence complained 
of." 

Defendant's sole contention is that "the trial court's 
denial ©f defendant's motion for judgment notwithstanding the 
verdict was reversible error," Defendant admits that "the 
rule applied to a motion for judgment notwithstanding the 
verdict is the same as the rule applied to a motion to direct 
a verdict," 

"•A motion to instruct the jury to find for the defendant 
Is in the nature of a demurrer to the evidence, and the rule is 
that the evidence so demurred to, in its aspect most favorable 
to the plaintiff, together with all reasonable inferences arising 
therefrom, must be taken most strongly in favor of the plaintiff. 
The evidence is not weighed, and all contradictory evidence or 
explanatory circumstances must be rejected. The question 
presented on such motion is whether there is any evidence 



fc^sqa lo s;t«i ai/oisgnsR JbiSB xigM,« ;>« «>Itdo«io;Jjati bias bM &^roib 

o:l b^ss®i iVQji^^tu has. gjatq^o^s ^uorlctiw fioitDeRlo;tfli fcisa eri^ o*al 

".floiJ-098'rB;tni bl-sa Qdi jxiWoed'oiq sigjcfd- fcna u&fii Sflsla qo;tc ®/lcf 

»10© ©life 1o 9Bli>isx9 &dt al esw sri d-acW e©3®IX« fees ^saiissJtXgen lo 
©rid- Hi cfon asw lli:ffiialq ^sd^ ^nold-eeirp nl eo«Iq &ns »«ilcf Gil;f is 

YlS'JfifflixoiQ rfoift'*' oi:'i/x;iXQoaJ;«i no;tasr fcjBs XxjflXIi?/ "io -^lliL's saw" 

•Mo 

Slid- ^albaa^BsU^l-^ion d-flejagbct ^P'i jKoIiJojc fe'J-flsfcneleb Jo Xsiaab 
©rid-" J-axIJ- 8d-lmJt'B :}as&bnelBQ. ". 70-1^9 GXtfi8T©r«*t aew :tolJbi9v 

Sasbaslfsb edi- lol ball o;^ xisst orit ^TojtJ'ict s«i oi aoiioa A'" 
8± ©Xfi exid- iifjjs ^?)oa©fclvc> ait? o;^ leiixm^b a to 9'w:taa exli ni el 
cXdstoval ufaoffi cfoeqa© ac^i cl ^o^ fce^'uamsfi on son^blvs ®ii;f ;tsifi 
SHJteii* BSSaa^elaX oXrfsnoaBsi ILb .rf;tiw 'i©iljf'»8o* ^tllc^fllfiXq «tri:f oS 
^tli^«X.sIq ftriJ Ic lovBl n.t xlsno'i;t8 cf»O0 noalBC!- sd iei/aj ,iaoi1:9i«d* 
TO ©t>xjsf)iv» t'io;toXfe3'i;tisoo XXjs fica ^fjerfgiftw .ton al sonefclv© edT 
noid-fiejifp ©riT ♦fcsioo(;9i sd .taxja a©ons^8Hii;oii» X'ro^snBX<pc» 
oadeI->lv» ^na ai «iof{:f isric^ariw al noLtoin xlouz no beinoeoiq 



falrl7 tending to prove the plaintiff's declaration. In reviewing 
the action of the court of which complaint is made we do not weigh 
the evidence, - we can look only at that which is favorable to 
appellant. Yess v. Yessp 255 HI* ^l^i McGune v. Reynolds j 288 
id. 188} Lloyd v. Rush^ 273 id. 489* » (H unter v. Troup j 315 
111. 293, 296-7.)" (Mahan v. Richardson ^ 284 111, App. 493, 
See, also, Wolever v. Gurtiss Candy Go .^ 293 111, App, 586, 597.) 
While defendant's counsel concede that we are governed by 
the foregoing principles of law in passing upon defendant's con- 
tention, they repeatedly disregard the principles In their argu- 
ment, they attack the credibility of witnesses for plaintiff, 
argue as to the weight that should be attached to certain testi- 
mony, and cite as facts for us to consider in passing upon their 
contention evidence adduced by defendant in rebuttal of evidence 
introduced by plaintiff. 

We find evidence fairly tending to prove the following 
facts: The accident occurred on the morning of June I6, 1940, 
at the intersection of 55th street and Willow Springs road, 
which intersection lies in a rural district of Cook county. 
It was a bright, clear morning j the sun was shining and the 
visibility was good; the pavements dry. 55th street runs east 
and west. It is a State highway, a through route. Defendant, 
in his brief, calls 55th street "a preferred highway," 55th 
street and Vlllow Springs road each has a two-lane concrete 
pavement twenty feet in width. The car in which plaintiff was 
riding was owned and driven by Orville Baumgardner, her husband, 
and it was proceeding on 55th street in a westerly direction. 
The Baumgardners were on their way to Downers Grove, located a 
few miles from the intersection. Defendant was driving his 
automobile south on Willow Springs road. There was nothing to 
obstruct his view of th« intersection or of 55th street to the 
east. Defendant started from Naperville, Illinois, and was on 
his way to Fremont, Ohio, He testified that once a year he 



i'v.l; '>? von oil €W efciiai -eJ: •^al&Lqin.oo doM-w Jo cfiooo exfct lo aolio£ ^rit 
.. ■s'sova'i el xisMw ctjid;^ jg vino :icoX azo ©w - ^ooaefcirvt 

.i^^ .qqA •Ln ^nc ^|i0Jto^J3M„^XJ?J^^) "(.^-c5V2 ^£^ .1X1 
'V^i^ t^S? •(IQ.^- «-^ . -v'^ t* Qp "^l^fiO SSlv^t^D ^?,i9V»XoW ^oals ,9f>S 

-IJ3P>^ nJta^i®© o^ feeydLp^^e fid bXmtiB iMi Jiiglsw 94^ ci ^ bui&ib 

^u!^^I ^61 muii, lo gjojbaioia sil* no bfti-M/ooo ^jicbloDJB ©riT :e^o«l 
^b&ct cgitiicja roIIlVk' fcnfi ;f69iJ'E dj-^^ lo aoijfoseieixil ailJ ;t3 
^Ximsoii ifapo lo ioitL^^sJtfe XeiSJi b ni e»±X iiol;Jo»e"i9;tnl doiriw 
®di ba& giiXjfiMe asw, ««« ericT ignixtioffl ia®Xo ^:tj:i8licJ £ sfiw tl 

,d'xiJB£>£i&l©G .©diK)^ rfs^o'Xit^ s ^X^^ivxisM ©;J-«;^8 & aX :tl .cfesw tjae 

£^:tD':ti-nor) 9iiiiX«~ow,t b sail iio/s© b&oi asflXnii; woXXXtf Jbas ^fpsid'E 
". UalMlfii li&tr'm at i&o SifT *i:fJf>iw nX cfool x^ii^*^ •ffl^fflsvaq 
^ !;.i.< .ea i.ijTi isii ^ieabi£^^mv&lS. »l£Xv^ x«^ n&vXib ba& l)«nwo eew saXfclii 
..cLoi^oeiife ^Xned-asw e jal Weald's ftf(J^ no soXfissooiq esw il baB 
Si fesctfiool ^avoiO ux&mtoQ ocJ" ^Jsw *iXsftf no 9 lew «itwi&iB8iajJB.u sdT 
ajtxi 3filvlit asiv d-njBfen»l®a ♦noi;fo9Bi6;tfli Bdi moil SBllta wsl 
o;t sJiXtC;tQn exjw s^sxlT .Baci agaXiqa woXXJ37 no ri^iroe eXlcfoaio^Jijfi 
eri^ o^ t90%is dt^"^ lo io noX-toeencc^nX od:f lo wsXv eXrf cfoin^fado 
HO 2aw Mu ^lUoriilXI ^sXXXviegsM moil be^tiB^a ixtefuiolea .j-as* 



pMmA 9T^r th« fXam^ Sa qm«»tioa an his m&f t& OM©, Om i?IU©w 

''prlags road, /is ©b« 8pfp©acli®» 55th »tr««?t- fi'iM t^** iK^rth, t!^y® 

'!^ first sign, t»o by thr<s« f*«t la aiK«, is^ i<«*t«d at a ^iBt 
(tyb f«©t north ©f tjai« i«t»?8#«ti<m anS INars ^fe« itordi*^ "CHC-ss 
1040 *f5tll St#** 45^ f««t Berth ©f tl*^ Intsrseetl^B th^v^ is 81 s^N^ottl 
ftlgBf «beat t»p r««t s^oiurf^, tJtot b^^ps th« ipords, «8tO? AMIAS.* 
Th* third Jiifa Is loost^d uixtT^tttr^* f««t BSirtii of tli« e^Jit«ff ©f 
tluft laters««tlo& and 1»mps tlM» i!«r«ISf '*S?OP ^tMtm Mesit®,"* ^^adh 
sign Is aboat foiur f««t friM th» frowKl. fli»r% iv^s aotMim to 
oti9ctir« ft Tisv of t)»« signs, D«f»i»ftasit t^stlfl^^'d th&t t^r« ms 
ao trsffia oa ^'.lllow prlBffi roft4| "n© traffic ^h*«4i of sat m 
stgrthlag llk» ttist^ &&tl)lii£ to obJsttrn Esy vl^^ of th#s9 signs, "* 
His osr stnisk ths r««r slid t»f pX&lJ%Uff*ft a&r (m %h^ right tl(l« 
&aA tliiQ r««r sad «»» torn p&vtlf Bimf ft&an xh^p osr^'' '*tlis hmek 
»f tlw «ttr sas dMBOllsted.** I>sfsnd£>at*» e&r «»s diuisg^d at tiM 
ff«Kt« Hm soianc! of th» erssli ms tMsrd h&lf s asll« 4^w&y fr<aa 
tlw iBtvrs^etloR* la th« BaaafsvdBsr ear vsrs lanagar^aisr} 
pXslatlff, his «lf«| Mr. ^bl^ sad ^s« i^ltwui. la d«»f«nd&at*a 
tar wmrm #»f«adaat^ Ms «if«« aai a assail eMId« Urn fero« of 
tlis ia^at appaars to bava lastaatl/ )clIl«S ^« iaaagardaftr* 
xAtiMm haad **aas era«k«»4 epaa*'' tka tlsraa oth-^r oeo\ip«ats of ttia 
laaagar^laar ear vara r«a^*r«d laasoasaloa* hy tlia lapaat* iiXaintlff 
raaaiaad uaoeaseloiis for s«v»raX days* 2^ saffar«d a fvaatara of 
tiMi aaok aai a qoIIqs frmctara of tli^ right raditis« Mvs« Xt&aa 
aas takaa to a }\ospltal aal at Vm tlaa of tha trial wss still 
aadUir a doctor's ear^ mnd a»s1»Xa to tastlfy la tim esusa, ClaraMMi 
J^hl suff»r«d a joaeuuitloa of tlw^ brfela sMd Ms '♦nose wms l^rolesa." 
!Ia tastifl^ thst th^r- last titiag that happoaad ^fora tha maUmB^ 
that ho could raiNHshor aas passing a gas ^tatioa <m 'j^th «traat* 
Flalatlff^ KT. iltaaa aad Claraasa B%i **m»« strawn iil<»ig tiM south 
ditak ott 55th atr«)at, m»t of tfiUov :^priBga road^" "ahoai 2^' to 30 



•.. iim T&^i* 



futi 10 iU^ii^ jf^i ^ii 



%i S. 



^-^i.l^ 



<iU "^i 






^■- •■ ■■■' ... ,. r ■■; 



«^*<»iu>6 itf ?t jio 4a#JU^ 



-6. 

TolIliMS in th« air fift*«ii t© tw^aty f<i«t ^^nafm tlsft gi^oiaeslf It 
th«)s hit tlM) grd$»ii And t)ijnEb»4 ov^p la th^> #lf ^f&ii}^ «ua^ ftgaia 
hit tii# ereua^f imA flR&llir Q«iigM to ^ &t&p &n th« »<diith ai4& of 
:?5^ strt^t, 225 f»«t fp«ffi th@ liit»r»#sti«m. It ««» th9A lyiag 
«fl it» aide, off tikt rosd, (m^ ""th® lioter w&s stiXI ru?uiiiag." 
P*urjg*rdiJ«r «a« Iflng on th» pftr«BW«it ftfeeitt «ig&t f«ii9t la f rotit 
of tlHr OftF* Aft«r the ft««i4«At 4af«adiirit'is asr w«^^ $ta»dlag up- 
right in th« diiteh on tfe» ^9st aid© of ?^lll©« Springs JNMii ft»A 
•oath of 55^ ttr<»»t» Woao of the oeeupsiiBts of d^f <»»dl«at ' s ear 
•9P««ra to !»▼• ftojttftlai'd asgr 'i^rlous ln^url«»s, !'oXf&r John 
?et«rsoa^ « )i>oIis«» offlo«p of th» vlllfig** of west^ra Epria^i^ 
roo#iv«4 ft oftXl that th«r« had h««« an ao.sld«et at th^ later- 
soetlw^ la ^anfftisa »»! «t fiwist droT# to th« pls@« aad aado «b 
lart»tis»tloa of thir «<iicid^-at. offioor rtftt^as vn^^ with hlw* 
^1I« they iitro aaklag th« iavftttiffttloa Qfflo«r !-«t«r»Qa h*(i 
a taUs with daf*adi«at. Offlfi^r r«t#rioa t»3tiri.»aj "I apok® to 
Ky« Btyor at tha aoaaa of tha aosidaat vhaa t r«t^rBad fr@«si th# 
hospltali I fot tha naval iarorffiatioa^ th« Xl3«na@ mees^t sal 
4rlTar*« llaaaaa, aase atti adSr^as^ uaA I aaldt * «!iiiit did y^m. 
49 • nm throu4ih thn sifB*'^ Ha saidi} *T9a«* I mi& *Dida*t 
TOtt aaa th9 3ifas ap ah»a4?* ''^ad ha aaid jw, h^ <lian*t. « «» » 
M»» ?laa [attopa»y for plaiatiff ^t Q, Did /ou ask hl« wlUi 
rafaraaaa to tha spaed of th^ satoaohila? Tha itltaosat X atik^^ 
hia hew fast ha vat golac aaS ha »ai4 hate's «^b forty aai^ forty* 
fiva allaa aa koar. Ht said ha had aot aaaa tha othi^r ear i»«f«e*« 
tha eelliaioa oeearrad*** frwaik Chalo«i|>kttf » hlghw^^y ^i^puty 
ahariff of Co«dl ooanty^ o»Il«d to ttvi S99im of th^ acel^'^at* 
taatiflad that h« aakad dafaadaat if li'% ted a^aa th# »ifB» aad 

that daf«ad»at aaavarad that ha did aot aotle*! aay sigaa. cjpon 
tha trial ^Isfaadaat t'^stifi'd that tm aa» tha fir^t ^iga hut 






r^rtlfluiri 






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ititm JSlif Je« ifmi M" 



tmM. mum ,, 'ti 

dB qn tnsK »af Mi j(«t 









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-7- 

"dldnH see the second sign at allj" that he saw the third sign 
when he was "about ten feet from abreast of it." During the 
examination of defendant by his counsel the following occurred: 
Mr, Sears: Q, Now, this other car, when you first saw it did 
70U have any idea how far it was from this crossroads sign on 
55th Street? A, No, I haven't, sir. As I stated before, I 
saw the top of the car and the rear end of this sign at the 
same time, Vhether or not they were parallel I don't know," 
The evidence shows that the "CROSS ROAD 55th St." sign is 636 
feet north of the intersection. Defendant further testified 
that he could not tell how far east of Fillow Springs road the 
Baumgardner car was at the time he first saw it, nor did he 
know how fast that car was going at that time; that after the 
accident he saw marks of his tires on the pavement, which showed 
that his "brakes began to grab about eight or nine feet from the 
collision;" that he did not blow his horn as he approached 55th 
street. 

From the force of the impact and the consequences that 
followed it the jury might reasonably have inferred that 
defendant, as he approached 55th street and proceeded into 
the intersection, was driving his car at a high and dangerous 
rate of speed. The Jury would also have been warranted in 
finding that the Baumgardner car entered the intersection ahead 
of defendant's car. The Baumgardner car had almost passed 
through the intersection when defendant's car struck it in 
the rear. 

Defendant makes but two points In support of his conten- 
tion that the trial court committed reversible e